Tuesday, July 25, 2006

Committee opposes 'Tesco law' - Law - Times Online

Lawyers are not popular but, collectively, we are important. An independent legal profession is a hallmark of a free society. If lawyers are controlled by the Executive, then how are the rights of individuals to be defended against the State? If judges are dependent on the Executive - for example to determine their pay and pensions - then how is the independence of the judiciary to be maintained and defended? There are already those who fear that some judges have "sold out" to the New Labour Project for increased pensions.

No-one likes paying us, but when you are in trouble and find the awesome resources of a modern State ranged against you, you need an independent lawyer to defend you and an independent judge to acquit you if you are innocent.

New Labour's New Totalitarianism marches on with this project. It is opposed by the Law Society. It is opposed - as reported here - by a committee of MPs and peers. If you think that the independence of lawyers does not matter to you, you are wrong.

Committee opposes 'Tesco law' - Law - Times Online


Anonymous said...

I'd rather have a legal system and laws that don't require full-time professionals with years at University and work experience to understand them.

Tom Paine said...

So would everybody. That's what Napoleon tried to achieve with his Napoleonic Code. It didn't work, unfortunately (or fortunately if you're a full time professional with years at University and work experience!).


Seriously, would you want only buildings that Everyman could design? Or surgery that any kid with a penknife could achieve? Why should Law, the fundamental mechanism of a free society, not be handled by skilled professionals?

The 'Twenty-Something' said...

Here, here!

Miss H

Anonymous said...

Of course you are right in practice - I was being a bit trite!

However I think the principle of trying to be as simple as possible (and no simpler) should still be the overriding theme in law. And those skilled professionals only interpret the law spouting out of Parliament, which can be of dubious quality.

PS. I don't really think the comparison with doctors or engineers is comparable; they are both working in fields with absolute answers that can be mathematically substantiated. Maybe we could apply scientific principles in law?

"What are the facts? Again and again and again — what are the facts? Shun wishful thinking, ignore divine revelation, forget what "the stars foretell," avoid opinion, care not what the neighbors think, never mind the unguessable "verdict of history" — what are the facts, and to how many decimal places? You pilot always into an unknown future; facts are your single clue. Get the facts!" - RAH

Tom Paine said...

Law is about human behaviour and is therefore not susceptible to scientific principles. However, neither is medicine or archictecture, in my experience! Both (like law) have scientific elements, but they are still both subject (like law) to all the vagaries of human individuality. Equally, like law, when they profess to be at their most scientific, they are usually the most wrong!

Anonymous said...

Medicine is absolutely subject to scientific principles - just because we don't necessarily understand them doesn't mean that's not the case. The human body is a very complex biological machine, with great variety, but is a machine nonetheless.

Architects work with engineers to ensure that they produce designs that can stand; whilst they bring creativity and art to the design process they are completely subject to the laws of physics ( and the local standards :-P )

I feel that law should be about establishing a stable framework for commerce and to enforce a certain level of morality to prevent individuals infringing on the freedoms of others; therefore subject to economical science and a culture's values. What I don't understand is why there has to be such vast amounts (or I perceive there to be a vast amount - I welcome facts here) of law dealing with the relationship between the government and the citizen. An individual should be able to stand before a judge and jury of his peers and tell the truth and expect to be treated fairly without needing loopholes, sub-clauses, precedents and all that.

I think I should note I do actually like your blog and read other points of view in case I learn something!

Tom Paine said...

Thanks. You didn't need to say that. This is an interesting subject I don't often get to debate. Architecture and medicine are - of course - based on science. When you say that scientific principles apply even though we don't know them yet, you open up a can of worms. Maybe there are scientific principles applicable to law (or anything else) that we just don't know yet? That might be true, but I am not sure it's useful.

Inevitably law deals a lot with the relationship between the individual and the state; especially as the State has a lot to do with backing up the law with force. The three great families of law in the world approach the issue in a slightly different way. Sharia Law imposes oblgations, ostensibly from God, on both individual and State. The Civil Law works on the premise that law is the creation of the State and that the rights of individuals derive from it. The Common Law starts from the premise that individuals are free to do what they please unless specifically impeded by valid law. In theory there are principles of "Natural Law" (Common Law and Civil Law straying into the Sharia mindset here) which override the laws of men, but I am of the "American Realist" school of legal theory which says a law is a law if there's a state to enforce it - and not otherwise. That rules out "International Law" (so much bullshit, in my opinion) as well as Natural Law.

The intellectual challenge inherent in Law is little understood by most legislators. They blithely legislate on limited data for specific circumstances and trigger - more often than not - the law of unintended consequences. Thus the government directs the courts to give sentencing discounts to those who plead guilty (in order to speed up justice), but doesn't anticipate the public outcry when a paedophile guilty of a vile crime reduces his sentence by half by the simple expedient of pleading "guilty" when he had no good defence anyway.

There is no solution to such problems except simplicity. The fewer laws the better. Of those few, the more that are developed incrementally from long-tested and refined laws, the better. The more independent the judges, the better. And the more discretion they are afforded to apply judgement in sentencing, the better too. Politicians can win a cheap headline by interfering in judicial discretion in a particular area, but almost always at the expense of doing future damage (see above).

Of course judges are human too. They will make mistakes. They will go mad. All sorts of bad things will happen. But if they are understood to be independent of the Executive and Legislature, and if politicians restrain themselves in a civilised way from making politics out of individual judgements, the people will understand that - overall - justice is being done and forgive the occasional cock up as merely human.