Sunday, October 18, 2009

A much needed Legal Reformation

An article in the weekend paper noted that the Victorian legal system is finally running a test case on whether barristers should lose their age-old protection against incompetence, or of misrepresentation of their clients in court. Apparently Victoria is one of the few jurisdictions left in the western world where lawyers are immune to prosecution for being bad at their jobs. (It seems that lawyers know the law is not designed to apply to them, a few years ago research showed the highest incidence of tax avoidance is amongst barristers.) Interestingly Monday’s paper was reporting on two barristers being told off for causing a mistrial by letting their overly-enthusiastic ‘advocacy’ run riot over procedure. They seemed surprised that anyone would think this is unusual… Wednesday's paper had an even more amusing story about how a long time Magistrate was being prosecuted for trying to interfere with a witness in a case against him. Are we seeing a theme here?

Lawyers in modern society are largely a class of privilege, unwilling to face up to their responsibilities to the public. The overall image of a modern barrister bears a striking resemblance to the arrogance of the French aristocracy in the 1780’s: intent on claiming their medieval rights to taxes and labour, while carefully avoiding the fact that their medieval obligations to protection and administration had long since become irrelevant.

It is always possible to argue the importance of lawyers. They were vital to building our rights over the last few centuries. Just as the Roman Catholic church was vital to creating a moral basis for western civilisation… until enough centuries of fat and corrupt Popes and clergy made the whole thing a mockery ripe for the Reformation. Similarly Unions were a vital to creating first self help organisations, and then protective organisations battling for the good of women and children and workers… until enough decades of cosy relationships with government (what the Hawke era called the ‘partnership’ between ‘big government, big unions and big employers’) led to the sort of corruption that saw the unions fighting for ever more appalling indulgences for an ever decreasing number of parasites. (One of my favourite examples is how when the NSW railways electrified, the unions insisted the redundant stokers be kept employed as effectively paid passengers for the rest of their working lives.)

Many groups have been important to the development of our culture, and almost all of them - kings, aristocracies, priests, guilds, unions and lawyers - have become overindulged drones after the importance of their contribution declines due to structural or technological change. All have eventually needed reform or abolition, or replacement with new methods. In government for instance, first a good monarch was vital, until the level of stability was reached which allowed a parliament. Second, we had centuries of professional class lawyers and parliamentarians making rules for a limited oligarchy of nobles and burghers. Then finally the franchise could be expanded as literacy and bureaucratic methodology could keep up, until we reach the current point of almost universal input in government. In legal terms we are still stuck in the second phase, and the papers daily report community outrage at the inadequacies of the system, and the detachment from community values of the results.

Why isn’t the Australian legal system interested in truth? Why do we have an 'adversorial' (read combative ‘trial by combat’ system), based on medieval relics and beliefs, rather than a system with the specific goal of truth and justice? Why do our courts and lawyers hide in archaisms which bear no relevance to the modern world? Our legal system is arguably both decadent and corrupt… to at least the same extent as the Roman Catholic Church at the time of Calvin and Luther. It is desperately in need of a Legal Reformation.

The problem is partly incumbency. Any political party or movement which is in power for too long becomes decadent and corrupt almost by default. No system can go unchanged for decades or centuries without becoming embedded in outdated habits and obsolescent viewpoints. Change continues in the world, regardless of the pace of evolution of these movements. In fact, it is changes such as the Reformation that dragged groups such as the Roman Church forward hundreds of years as they finally acknowledge a need to relate to their clients and stakeholders.

Which is why we need a reformation for our legal system.

The original idea for our current concept of trial by combat came from Viking practices. If you could not decide the issue in any other way, both sides could have a champion fight with one foot each on a cowskin. The first to remove their foot, or the first drop of blood to touch the cowskin, decided the legal case. Medieval Europe enhanced this concept by making it clear that God would grant victory to the good guy (the cowboy in the white hat); and promptly expanded into trial by ordeal, where the accused were burned or branded to see whether God would heal their wounds to prove their innocence. (Interestingly the theory of burning is the same theory as modern lie detectors – stress, increased heart rate and blood pressure, opened sweat pores, inhibited immune system – which theoretically, and in statistical history, seems to indicate that the Medievals found their lie detectors not much less accurate than ours – which are themselves not acceptable in court because of their innaccuracy… But we digress.)

The church banned trial by ordeal in the thirteenth century on the principle that it was unacceptable to demand that God should perform a miracle at our convenience. However trial by combat had a long life. The last recorded case in England – in 1818 – saw a gentleman challenge his opponent in a legal case to meet him in full armour. The opponent found – to general horror – that the law allowed the challenger to declare him forfeit for not turning up, and have the case settled in his favour. Parliament made hasty modifications which officially banned trial by combat from then on, which change has been inherited by Australia amongst other Commonwealth countries - though theoretically not by the United States... (A more recent ‘reform’ means that we no longer get these sort of general modifications passed on from the wide collection of international scholars and jurists who make up the Law Lords. We now rely on a home grown group of lawyers to make these decisions from their own biases… yay for independence.) So why, we ask ourselves, are courtroom disputes still settled by trial by combat?

Admittedly our champions these days do not dress up in armour and whack each other with clubs. Instead they dress up in medieval robes and eighteenth century wigs, and fight with jargon. But fight they do. A Prosecutor’s job is to get a conviction. He/she is specifically not supposed to find the truth, just argue his case to the best of his ability. They are, after all, the state’s champions. Similarly the Defence council’s job is to get an acquittal. They also are specifically not after the truth (hence the big deal made in modern tele-movies about never asking your client if they are innocent, which after all is irrelevant to the Defence case – and possibly to their peace of mind if they knew the truth). The Defence is the accused’s champion, and is supposed to fight for them even if they ‘suspect’ (often read ‘know’) they are guilty as sin. (Morally, I am not sure how many of them can look in a mirror after returning some of these people to the streets… but in a purely theoretical sense they can pretend that what they are doing is the right thing, at least by the rules of an archaic system.)

The whole thing really goes back to the idea that in any trial by ordeal or combat, God will reveal the truth. This is really the only basis on which such a system makes sense after all. Yet it is amusing how many of the modern advocates of our trial system are proud atheists, who loudly denounce superstition… in any area but their own. They should possibly note that in medieval England the oath the participants had to swear before undergoing trial by combat was: Hear this, ye justices, that I have this day neither eat, drank, nor have upon me, neither bone, stone, ne grass; nor any enchantment, sorcery, or witchcraft, whereby the law of God may be abased, or the law of the Devil exalted. So help me God and his saints. Given our new age witchcraft and paganism, wouldn't it be fun to make our barristers go back to it!

Whenever I have tried to raise these issue with people trained in Australian law, they have sometimes had defensive fits about the evil’s of European style Inquisitorial Courts: where the state appointed judge or panel of judges is assigned to find the truth, regardless of what prosecution or defence think. I admit that there are many flaws with the French system, which itself needs modifying. I don’t think this is a good reason to write off a system based on finding the truth rather than fighting a battle. I certainly have more sympathy for the European jurists who have defensive fits about heading down the Anglo tradition of combative ‘justice’. Let’s just say that both systems have flaws, and neither has a right to think we can’t design something better.

Yet we certainly need to try and make changes. The real flaw with trial by combat was that if you are poor, and can only afford a cheap champion, and I am rich, and can afford the best trained and equipped fighter in Europe: then there is a better than even chance that God will come down on my side! The same basic principle applies to modern courts. He with the deepest pockets tends to win – as the taxation department would ruefully agree, when you look at many of their corporate tax dodging cases. (The fact that modern ‘poor’ can get state aid, which means they can easily bankrupt ‘middle class’ people who could not, is hardly an improvement!)

So is it ‘right’ that we still run our ‘justice’ system by trial by combat? Is it in any way morally acceptable that we specifically bias the system to wealthy consumers over finding the truth?

Naturally Australian lawyers are keen to maintain and expand the present system. Not only is the laborious process of trail by combat much more profitable for those lawyers eager to drag at the process than any other imaginable system could be, but we have too many lawyers anyway. (I particularly like the old joke – one lawyer in a town will be poor, but if there are two they will both be rich…)

Unfortunately one of the Dawkins ‘reforms’ to Australian Universities, was effectively to give the smaller universities the chance to open higher prestige faculties. The choices were A) medicine – which takes enormous expenditure on labs and facilities and practical subjects such as dissection, or B) law schools – which mean filling the biggest lecture room available and hiring a couple of failed Masters candidates to assign study groups. The result was a vast and completely unnecessary increase in the supply of lawyers. (A world plague in fact. It is not a joke that there are more lawyers practicing in the western world today than have existed in the whole world in the two millenium before the Second World War.)

The situation was made worse in places like Victoria when lawyers were given the right to advertise. Now the airways are filled with adds for ‘no win/no fee’ speculative cases, where the vast oversupply of lawyers plead for anyone who ever caught a cold, or tripped over a rock, to sue someone as a result.

Personally I consider myself permanently in ‘contempt’ of the courts. Until we have a system that puts finding the truth above the financial benefits of a medieval class of combative drones, it is not possible to treat our legal system as a real ‘justice’ system.

Give me a legal system that values truth… please.

Give me justice, or give me…

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