The easiest way to create a monopoly is to invent a language and procedure which will be unintelligible to the layman. This illusion of complexity—whose grand finale, like a rabbit out of a hat, is the divination of simplicity—has, in the past, been the art of countless quacks. In many ways, it is also the art of the ancient and noble profession of the law.
The extent of the monopoly is awe-inspiring. We have handed over to a professional corps more power than we would give to any elected executive. We have done it unquestioningly and largely unknowingly and even now call for no supervision or checks and balances in return. It is a monopoly which touches our daily lives at every point imaginable: it fashions our education, our relationships and even our morals. This transference of power to the lawyers has slipped through smoothly because of our respect for the law.
Though positivist and man-made, the law—in the words of Thurman Arnold—is ‘a great reservoir of emotionally important social symbols’. The law is the leveller in our society: before it, all are equal and all may go in search of justice. Its regulation of human behaviour—enforced by sanction—is our only barrier between ordered civilization and anarchy.
This respect for the law inevitably invests those engaged in its practice with a certain amount of power. The administration of human affairs, even the most routine, is now in the firm grip of lawyers. It is traditional to celebrate almost every milestone in one’s life—such as buying a house, getting a divorce, making a will—by a visit to a lawyer, as if we have been schooled to seek double consecration by Church and advocate. It is the idea in practice that lawyers are indispensable if things are not to go wrong.
Until very recently, the assumption that law was necessary led uncritically to the assumption that lawyers too were necessary. State legal aid and the mushrooming of local law firms and advice centres permitted classless indulgence in recourse to the lawyer. Legal assistance was held to be as important as hospital assistance and the professional determination of one’s rights as paramount as any medical check-up.
Legal assistance became an obsession and the obsession became a superstition. “Unless a lawyer does my conveyancing, my house will turn out not to belong to me: unless a lawyer writes a letter on my behalf, I will not get any money”. But quickly the superstition became a profitable monopoly that was reinforced by the state and citizen’s advice bureaux and, in most jurisdictions, the monopoly has passed unquestioned. In England, for example, the Solicitors Act 1957 actually wards off legally unqualified competitors—in the fields of conveyancing and wills by the threat of criminal prosecution.
Moreover, the role of the lawyer is ever encroaching into new spheres. As one of the service professions, it is remarkable that lawyers have escaped scrutiny for so long. The moves towards do-it-yourself law and commissions of inquiry into lawyers’ services are relatively new. Even then, however, they do not really begin to expose the roots of the profession’s influence.
The most common attack levelled against the lawyers is Marxist in origin. It is the control of property, the argument goes, that leads to the control of resources and of human beings, and by such devices as their concept of property, the right of ownership, and the doctrine of possession, lawyers rigorously preserve the status quo and act as a powerful force against social change.
Political criticisms certainly can be made of lawyers but this one is unfair because it mistakes the role of the lawyer which, whatever it may be, cannot be said to be legislative in character. It is for the legislature in democratic assembly to effect social change, not the lawyer by personal whim.
This Marxist error underlines the problem. There has been a complete lack of any attempt to define the lawyer’s role and the failure to attempt such inquiry or definition has meant that lawyers have been free to range unchecked into ever wider spheres and fields of activity. As soon as a new field of human endeavour or interest is established as a commercial proposition, the lawyers move in to secure their role and profess their expertise. More recently this has happened with industrial relations (which is utterly unsuited to the legal process) and sexual equality.
The highpoint of the lawyer’s claim to supervise human affairs is well put in the following assertion made by Lord Macmillan in his book “The Ethics of Advocacy”:
‘The existence of a class of trained advocates possessing knowledge in the law, skill in the orderly presentation of facts, cogency in legal argument and fairness and moderation in controversy is indispensable’.
In the daily promotion of consumer products and commercial services, we are used to hardsell advertising and we even rely on it to narrow an otherwise limitless field of choice. Perhaps this is a part of the reason why, when we encounter such statements in different contexts—here in the service profession of the law, we more readily accept them. We are told lawyers are indispensable and, since we have no clear idea of what lawyers do, we accept it.
The great difference, however, between a lawyer and a tin of peas is that we do not always know when and whether we need one, nor, since a lawyer’s performance is largely ritualistic expertise, is consumer criticism normally possible; even if it is, we cannot appeal to an independent supervising agency but only to a professional governing body. The legal profession, therefore, has none of the checks by which we measure other consumer services. If need and performance cannot be assessed, and if service hire is virtually required by the system, the monopoly is both furthered and entrenched.
Do we need a lawyer? In any system of criminal justice the answer is unqualifiably that we do. But in relation to every other issue—that is to say, every non-criminal matter—the role of the lawyer should be open to question. Of course, there are many situations in which we require legal advice but in a host of others lawyers are indiscriminately hired on the grounds of need when the need is, in reality, not a need at all and either a subterfuge for some other motive or a surrender to the consequences of not having a lawyer.
The second half of the twentieth century is the age when experts were revered and when expert advice became an expensive commodity. For the professions this was a Klondike since all professional advice passes as expert. But legal advice is not invariably expert. ‘A good deal of the lawyer’s competence’, said Dietrich Rueschmeyer, ‘is connected with his legal knowledge only indirectly or not at all’ (“Doctors and Lawyers: a comment on the theory of the professions.” Canadian Review of Sociology and Anthropology 1964, pp 17–30).
To “seek legal advice” may, therefore, cover a multitude of situations none of which necessarily arise from the need to consult a lawyer at all. Frequently legal advice is simply common sense or experience of the kind of which most rational people are capable, yet we choose to pay lawyers for the reassurance of involving some intelligent third party in our personal affairs. In such a way, we consult lawyers as a lovesick teenager would consult an agony columnist. To gain an ally at a time of doubt or distress. To have an audience with someone who is dispassionate. It might just as well be an unqualified neighbour or someone from a completely different discipline such as a social worker or psychiatrist. But it is traditionally the lawyer because the whole process of consultation has been made respectable and is euphemistically called “seeking legal advice”. Society does not attach any hang-up to visiting a lawyers’ office.
A combination of supernatural belief and carefully induced prudence accounts for another large slice of lawyers’ business. Lawyers heal situations, ward off trouble, and make problems disappear. This reposition of faith has all the symptoms of a cult which has so permeated the consciousness of society that it has lost its fringe quality. The chief sponsors of the “pygmalion” process have been the legislative assemblies and the courts who have encouraged the use of lawyers in a number of ways which are discussed later. It is a cult founded from the popular viewpoint on the fear of the consequences of not having a lawyer, and from the official viewpoint on the paternalistic belief that people ought to be assisted. As a general proposition—with the exception of criminal issues—this is misguided and wasteful.
In the majority of legal consultations, all that a lawyer does is to elicit the facts and then to restate the client’s position in terms of legal rights and duties so as to highlight the strengths and weaknesses of the case. Like a soothsayer of the law, a lawyer predicts a court’s reaction to a given situation. His experience and judgement may often be invaluable, but much more often this mere stating of the odds is unnecessary and people could help themselves equally well if only they were educated and encouraged to do so.
The truth is that, nine times out of ten, cases are decided not on a point of law but solely on their facts and the merits. Judges rationalize their conclusion of what is just in the circumstances from the evidence before them: they do not deduce it from rules and legal precedent. Judicial reasons, as Professor Wisdom has said, ‘are like the legs of a chair, not the links in a chain’. They support but hardly ever dictate what it is wanted to say. The law in practice is not so formalistic that it places the judiciary in straitjackets: the process of judicial decision is controlled discretion. In virtually every contested case that comes before a court some kind of value judgement is made in the process of deciding it—even if it is only in the way that the judge frames the issues of fact for decision. ‘Values’, said Mr. Justice Holmes in the United States Supreme Court, ‘are the inarticulate major premise of judicial reasoning.’
The point is that it is almost always the facts and the merits that will decide. The late Lord Reid, a distinguished member of the appellate committee in the House of Lords, used to advise extra-judicially not to waste time arguing law but to establish a case on its merits as quickly as possible. It is precisely the facts and the merits which are best known to the litigant himself, and a large part of the cost of all legal consultancy is accounted for by the time it takes simply to explain them to a lawyer so that he can repeat them at a later stage. Yet facts can, in the course of such re-telling, lose their force or cogency and litigants in many cases might do better in presenting their cause themselves and in establishing the merits. Clearly if there was a move towards a more informal committee-like court structure, litigants would have the option to do so.
There are very few vexatious litigants. Most people come into contact with the legal process only once if at all in their lifetime, usually either in the wake of some personal crisis or as a result of a heated dispute in the course of their business. In such circumstances, most potential litigants are acutely vulnerable. They go to law only to win and not to criticize the legal establishment. They, therefore, play the system uncritically.
It is a popular belief that you will not be able to do justice to your own case unless a lawyer represents you. It is the medieval tradition that justice is only achieved through a battle of retained champions. Without a lawyer, you deem yourself—and, above all, are deemed by others—to have no ammunition and no real status as a complainant. Against elusive business customers or an impossible neighbour, a lawyer offers himself as a legalized strongman: like protection rackets, the bigger the firm the more seriously you are taken.
Legal systems give no confidence to litigants to go it alone. They call for dependence on lawyers. The complexity of pre-trial procedure, the ritualized style of pleadings, the public arena of the court—all contribute to make the pursuit of even the most simple claim a professional venture. We are not educated to cope: school syllabuses contain nothing which gives even a hint about what to do or expect. Left alone, people are unsure of their rights and even more unsure of how to press for them.
Most legal systems are not geared to cope with litigants in person who are usually categorized as eccentrics who selfishly bring delay and chaos to an otherwise smooth administration of justice. Lawyers representing the other side will generally not communicate as easily or as frankly with a litigant in person as they would with another lawyer: judges also communicate less effectively with litigants in person perhaps because they feel a duty to be more cautious and feel that they are too personally involved to be capable of objective dialogue. There is a grave risk, therefore, that a litigant representing himself will not be able to get into the best position for negotiation before trial or to manoeuvre to his best advantage at trial. In this curious way, it may be that our legal systems have made representation the prerequisite to complete justice.
Our reliance on, and indiscriminate hire of, lawyers is induced in several ways.
Firstly, as Lord Devlin has pointed out, instead of creating a “self service cafeteria”, it has been the mistake of every legal system to insist upon “waiter service”. A country’s legal system is its showpiece, its reference in international credibility. But the expense is crippling and the merits of such a service to the paying client and the taxpayer are open to serious question. It is a monopoly that we ought not to be sure we even require. The great risk of unnecessary consultation is that it frequently leads to unnecessary litigation.
Secondly, the complexity of the provisions that are weekly being legislated to regulate our commercial and even social relationships, not to mention environmental obligations, is such that our law is rapidly resembling some enigmatic code. Much of the drafting of present-day legislation is couched is such obscurity that it requires professional code-breakers and probably goes through on the premise that they will be consulted as a matter of course. Dependence is powerful fuel to any cult; in relation to the legal profession, it is founded on the propogation of the idea—promoted by our legislative assemblies—that laymen can only view the law through a glass darkly. Professionals must interpret and apply it.
Thirdly, the universal insistence that, since the law requires respect, the determination of legal issues should be fought out in a ritualistic and formalized atmosphere. Courts are arenas run on ceremony and form rather than committee-rooms practising a reassuring but firm informality. It is as if justice and respect for the law demands such ritual, but the trappings serve only to invest the legal process with all the mystique of a religion instead of presenting it simply as a code which we apply to regulate social and commercial behaviour and to resolve conflict.
Fourthly, there is a total failure to provide facilities for litigants in person. Although everyone is presumed to know the law, they are not educated or encouraged to understand it or to apply it. It is the lawyers who solve our problems and who, like the high priesthood, alone are familiar with the workings of the legal machine.
Finally, having brought about the various factors inducing dependence, the monopoly is made complete by the comparatively recent introduction of state legal aid. Consultation is easier, indiscriminate hire more probable, the cult re-inforced.
An important part of the cult is relegating the role of the litigant. Litigants are usually only tolerated, and their role confined to that of bystanders and witnesses. It is as if the legal process is some vast and creaking machine which, once set in motion, cannot be approached or operated except by those who have been initiated in its workings.
Most litigants are required to surrender complete control of their case to the lawyers on the ground that they do not know what is best for them, and meekly accept relegation to the position of observer in a drama which could radically alter their lives. Although lawyers claim to act only on instructions, that is only the literal truth and not the reality.
Law is a service profession: in England, a service tax is levied on lawyers’ services. Like a client in any other situation, litigants ought, therefore—at the very least—to have consumer rights. They should be able to shop around, know the kind of service they ought to be getting, and be able both to question and measure it according to accepted standards. Yet the induced dependence on lawyers is so great, that they commonly abdicate not only consumer rights but even residual supervision.
With the exception of armed conflict, virtually every manner of crisis in our society is fought out in the courts. Political confrontations and moral debates are settled finally by the legal profession once most of the headline heat has cooled. The Chicago Seven, the Angry Brigade, Baader-Meinhof, Brown -v-the Board of Education, the English prosecution of the Schoolkids’ Oz, the American trial of Ralph Ginzburg—the constitutional and criminal cases are replete with examples. The very pulse of our society, of its direction and its outbursts, falls to be examined by the legal process. Every surge forward is either checked or encouraged.
It is this ability to examine which produces the most penetrating consequence of the lawyer’s monopoly. It is the judicial consequence. The fact that lawyers are the sole candidates eligible for the judiciary. The members of this small élite do not merely condemn and sentence, but, by a fine continuous thread of judgements, actually fashion our social standards and set the bounds of our public morality. The judge is—to use a phrase coined by Lord Mansfield in the eighteenth century and cited with approval by the appellate committee of the House of Lords as recently as 1961—the “custos morum” of the people.
But his power goes even further. In most jurisdictions, the judiciary will pronounce on the very legality of the acts of the democratically elected executive to the point of striking down a statute. It is the judiciary who interpret constitutions, claim the power to review the policies of administrations, and even declare or deny the legality of governments to govern.
The scope of their power and its implications is only fully appreciated when it is realized that they pass into power—by mere appointment—unquestioned and usually unknown. What other career would we tolerate whose promotion prospects carried such omnipotence without, at the very least, insisting upon the closest public scrutiny? Who are these men and what are their qualifications? Do they have prejudices, and, if so, are they coincident with our interests?
The identity of the judiciary and its politics is important because it is the judiciary’s sense of Zeitgeist which runs through judicial precedent and which, together with legislation, provides the blueprint for our social development. It is the judiciary’s sense of fairness and propriety which sets our standards and those of public administration.
The judicial consequence implies judicial discretion. Benjamin Cardozo, an Associate Justice of the United States Supreme Court in the thirties, put it vividly:
‘We do not pick our rules of law full blossomed from the trees. Every judge consulting his experience must be conscious of times when a free exercise of will, directed of set purpose to the furtherance of the common good, determined the form and tendency of a rule which at that moment took its origin in one creative act’) (The Nature of the Judicial Process pp 103–4: Yale University Press).
A little earlier, on December 8th 1908 to be exact, President Roosevelt had stated it more bluntly in his message to Congress:
‘The chief lawmakers in our country may be, and often are, the judges, because they are the final seat of authority. Every time they interpret contract, property, vested rights, due process of law, liberty, they necessarily enact into law parts of a system of social philosophy; and as such interpretation is fundamental, they give direction to all law-making. The decisions of the courts on economic and social questions depend upon their economic and social philosophy; and for the peaceful progress of our people during the twentieth century, we shall owe most to those judges who hold to a twentieth century economic and social philosophy and not to a long outgrown philosophy which was itself the product of primitive economic conditions’ (43 Congressional Record: Part 1 page 21).
In 1908, such jurisprudence attracted outraged criticism. Many people then and now perhaps do not care to contemplate the judicial consequence and the fact that we repose such total trust and power in a group of men who have simply reached the pinnacle of their profession. They prefer to think of justice as being a set of rules which is objectively applied. Yet once it is appreciated that this is not so, it becomes clear that the service profession of the law is, in every sense, the spawning ground of hidden government.
Any advanced legal system ought to be quite clear about the role of the lawyer within it. When the trend is towards increasing independence from manpower, it ought to be questioned why our dependence on the professions, particularly the legal profession, remains unrelieved.
Justice is a demanding ideal and the concept of “computer justice” is generally condemned as abhorrent. Each case carries its own variables and only careful evaluation can strike a proper balance. Any attempt, therefore, at a critical review of the pursuit of justice and how it is best obtained inevitably stirs up deep sensitivities.
The prerequisite to such review ought to be an examination of the laywer’s role. Limits to the role should be roughly drawn so that exceeding them is recognized as trespass and not the province of the lawyer. Counterfeit hire should be shown to be counterfeit and there should be massive re-education about the use of lawyers. It is largely a question of slaying myths and allaying fears.
Removing dependence on professionals requires encouragement to help oneself. In the field of law, such encouragement can only be provided by adapting the legal system which, at virtually every stage, currently re-inforces the cult of dependence. Perhaps the starting point would be to strip the law of its majestic image and to dispense so far as possible with the full panoply of legal proceedings. Solutions to human affairs ought to be worked out in a human atmosphere and not an orators’ arena baited with procedural traps. The drift towards complexity by our legislative assemblies should also be checked: there is no merit in obscurity or in over-legislating, and the more complex and obscure we make our legal systems, the more firmly entrenched are those professionals who alone claim to understand it. Our dependence on them becomes as hooked as any addict’s, and the cost to the State of subsidizing such dependence will soon be crippling if we allow it to continue uncritically. That is, of course, not to say that those who genuinely require assistance should be deprived of it.
There should be a move towards boardroom justice—a justice which is committee-like and which operates informally. Litigants in person should be encouraged and received tolerantly. Legal rights and how to assess them should be taught—at least in outline—in our schools so that initiation no longer comes solely through experience. Compendiums for easy reference on various branches of the law should be compiled and kept up to date with the use of supplements: a library service of those compendiums should be available at every court. Litigants could then generally present their own cases concentrating on the facts and the merits, and leaving, if necessary, any points of law to be spotted and decided by the tribunal. If they felt aggrieved and chose to appeal, then they should at that stage seek legal advice, but the idea that it is invariably necessary to consult a lawyer—and to have him as a representative at any consequent proceedings—ought to be dispelled. In a boardroom system, the consequences of not having a lawyer ought not to result in unfairness or prejudice. Depending on the category of case, it could be an accepted norm.
Our reliance, however, on the quality and impartiality of the “chairmen” or judiciary—whose task it would be to staff such a system—would be greatly increased. There is no desirable way of checking the judicial consequence except to devise a satisfactory method of close public review before judicial appointment and to encourage the use of experts from other fields to sit with a judge as lay advisers: the legislature should also be vigilant and prepared to correct unacceptable judicial precedent by legislation.
To a very large extent, it is, and must be, a matter of trust. But that trust will run much deeper if we are not subject to a legal profession on terms which we do not fully appreciate and which are not really in the public interest.