Doing our good citizen bit...

I am off to do jury service. A chore I could do without but, if we are to ensure that some small part of our justice system isn't run by lawyers for the benefit of lawyers, it is important that we play our part as citizens. I have no idea what to expect but I am still reminded that the jury - trial by jury - is an essential link to community and to the idea that justice should be delivered by that community not by a mighty state.

In the meantime I leave you with a barn owl I met at the Cottingley Fun Day - not your typical funday denizen to be sure but he* seemed pretty chipper about being there!

*Or possibly she - not expert enough to tell the difference in owls!

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

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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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Why can't folk just accept an apology?

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Today I'm off to sunny Scunthorpe to speak with councillors about social media - twitter, blogs, facebook and so forth. And with all furore around the #twiterjoketrial and Cllr Gareth Compton's rather ill-advised attack on a well-known left-wing journalist, there will be plenty to speak about.

However, it seems to me that we have lost our sense of perspective in all this. I'm not passing judgment on either case except to say that, as ever, the law is an ass. But I do think that the protagonists in each case, as well as others involved, would not have taken this approach were we a better cultured and more civil society.

However much I respect and admire folk like David Allen Green and Robert Dougans for their efforts to minimise the law's ass-like nature, it seems to me that a society which turns instantly to law in order to resolve the insults inevitable in discourse is a truly decadent society. The lofty ideals of free speech, chivalry, decency and tolerance that we ought to treasure are cast aside as the insane literal-ness of the legal process crashes through the doors of our culture.

I listen to the fake offence being taken by people involved in these sort of cases. I scream silently as another person hides behind race, creed or gender to make indefensible accusations of their protagonists. And I seeth with anger when I see people who dish out ad hominum attacks every day respond to the mildest of criticism with an appeal to the law.

In a truly civilised society we would not need to conduct expensive court cases and appeals over jokes on twitter. The offender would put his or her hand up and apologise. The authorities would stand there and say:"don't be such an idiot again" - and their advice would be heeded.

In a truly civilised society the first response to causing offence should be an apology. Followed by that apology being accepted by the offended party and a shaking of hands. A lesson learned.

Instead people lose their jobs, their careers are ruined and their health is destroyed.

All because some folk are too grand to accept and apology or too rules-bound to do anything but prosecute. Or motivated by the opportunity to destroy someone's life so as to gain a temporary political advantage.

Next time...

...just accept the apology!

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