Saturday, 13 November 2010

The law is an ass. And lawyers serve that donkey.


My professions – such as they are – are accessible. That is you do not require a particular piece of paper in order to be a politician, a marketer, a fundraiser or a regenerator. There are folk with a range of qualifications, experience and approach doing all these professions – and doing them well.

The problem with all this is that people try to make their professions exclusive – there’s a Chartered Institute of Marketing, there’s an Institute of Fundraising and I’m pretty sure there’s an Institute of Economic Development. All these institutes wish to secure – in the manner of the medieval trades guilds – control over who does these jobs. Not because it is only possible for people holding the institutes’ paper to do these jobs – that is demonstrably not the case – but because the use of these barriers restrains supply and thereby artificially raises the price (we get paid more money).

These tyros look wistfully at the old professions – and especially at the law. The legal professions have control of a system that ossifies the inefficiency of the ancient courts, that talks in a language different from that or ordinary people, takes on a position of such elite magnificence that us mere civilians must nod in wonder at its genius.

But there’s a problem. The law is an ass. And lawyers serve that donkey not the public.

The question is whether the law’s stupidity is a function of those who make the laws – the politicians – or a result of the profession’s distance from normal life? And while we rightly focus on the daftness of some laws, we do not ask about how the law’s concepts corrupt real meaning and act to drive perverse and sub-optimal outcomes.

Let me explain with reference to two ‘terms’ often heard in reference to court decisions – “reasonable” and “ordinary”.

We think we understand what these words mean. To most of us, “reasonable” means governed by common sense – we do not need firm or strong boundaries to that and can be flexible or fuzzy about it. But we know reasonable when we see it! But hang on – lawyers don’t mean common sense they mean something else entirely:

The word “reasonable” in law means fair, proper or moderate having regard for the circumstances. It is most frequently used as a word fixing a standard of assessment. Use of the word imports an objective test to the noun with which it is used.

So this isn’t the exercise of judgment but the application of a test. And, in applying that test, it is possible to make the reasonable unreasonable (and vice versa). The law becomes that donkey again.

And so to “ordinary” – used in the recent ‘twitter joke’ appeal. As the judge put it:

As for the tweet at the centre of the case, she called it "menacing in its content and obviously so. It could not be more clear. Any ordinary person reading this would see it in that way and be alarmed."

It is very clear that the lawyer has a very different – perhaps more precise – definition of “ordinary”. The ‘ordinary person’ is a lawyer’s convenience – untested and unevidenced – allowing them to lay claim to understanding. The judge’s statement has to be untrue since she could not possibly know – so a convenient fiction is constructed to avoid the need to test the truth of that ‘ordinary person’s’ response.

None of this is meant to be an interpretation of that case since, as I am not a lawyer, I cannot understand the decision. What I am observing is the manner in which the law and lawyers create a language that excludes that ‘reasonable man’ and ‘ordinary person’. Such people are merely chimera – constructs that allow the judge to impose his or her view on the world through a claimed ‘reasonableness’ or ‘ordinariness’. They are not you and me - real 'ordinary men and women'.

In its essence, the process of trial is simple. The situation is described, arguments are made on both sides and somebody (or bodies) arrives at a judgment on the basis of what is heard. To conduct such a process does not require great study except that lawyers – aided and abetted by politicians – have created a great body, a different language and an excluding process. Which allows said lawyers to maintain and protect their privileges.

The legal professions are the last of the medieval guilds still wielding power and control. They are self-regulated and exclusive. Access to the law is expensive – unavailable to all but the very rich, the very poor and, of course, the Government.

Any reform of the law has to start with reforming the professions and opening up the judiciary. So long as the professions act as guilds – controlling entry, managing the work and administering internal justice – we will continue to get these perverse outcomes of legal processes.

…but the law will still be an ass. And lawyers will still serve that donkey.


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