So whose law is it anyway?

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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.

Depressing.

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"First thing we do, let's kill all the lawyers." - thoughts on the incentives to extend the scope of law

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In his book, “The Armchair Economist”, Steven Landsburg opens Chapter 1 with this sentence:

“Most of economics can be summed up in four words: “people respond to incentives”. The rest is commentary.”

So when I say that lawyers have an incentive to increase the amount of law, I do so with the weight of theory behind me. Lawyers also have an incentive to make it difficult to become a lawyer – not because only clever people can do law but because by controlling the numbers of lawyers the profession is able to seek higher rents from the system. Lawyers also have an incentive to widen the competence of the law – by which I mean the areas in which lawyers act and are paid.

Under these circumstances it clearly does not make sense for the lawyers – with their incentive to maximise rents – to be in charge of the system. Yet that is the case. There is no substantive lay perspective on the administration of our legal system. Moreover, the conspiracy theorist might argue that the number of lawyers in parliament reflects a further aspect of this response to incentive since the proximate beneficiaries of the passing of statute law are always lawyers.

I don’t think that there is a secret cabal of lawyers masterminding all this – the Law Society and the Bar Council are pretty open about their primary roles as the trades unions for lawyers (and very successful ones too). And, with their bewigged authority and seats in the upper house, the top lawyers are accorded a privileged position from which to control the operation and administration of the law.

It seems to me that any intelligent lay person should be capable of hearing argument and coming to a judgment relating to that argument. Indeed, it should be the case that any intelligent and informed lay person is capable of making the argument itself – a barrister is merely someone who makes a profession of being good at the making of argument.

Putting lawyers in charge of the law is akin to giving Ronnie Biggs the keys to the safe – asking for us all to be royally, and charmingly screwed over. Yet that is what we have done – we have put lawyers in charge of the legal system, we have allowed them to create privileged closed shops and we have permitted the extension of legal competence beyond its proper role within the courts to all aspects of business and personal life.

As Shakespeare put it:

Cade:I thank you, good people—there shall be no money; all shall eat and drink on my score, and I will apparel them all in one livery,that they may agree like brothers, and worship me their lord.

Dick:The first thing we do, let's kill all the lawyers.

Cade:Nay, that I mean to do.

Henry The Sixth, Part 2 Act 4, scene 2, 71–78

Lawyers really are an obstacle to freedom. They don’t mean it that way but their interests and the incentives we give them make it so.

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