THE LAW IS AN ASS
"Come the Revolution, the second people to be lined up against a wall and shot will be the lawyers.” So goes the trenchant, quite possibly cynical, opinion of a friend of minewho is no lover of those dressed in black gowns and wigs, or even sober suits in the shires. (The first to be shot, if you’re interested, would be the bankers.) Mr Bumble in Dickens’ ‘Oliver Twist’ proclaims, “The law is an ass.” When commentators speak of Sir Keir Starmer, His Majesty’s Leader of the Opposition, they usually point out, “Well, of course you mustn’t forget he’s a lawyer,” and that allusion is rarely meant as a compliment. “As Aussies, we see the law as inherently bad,” Nick Cave tells us, “We have a real distaste for authority in our make-up.” Not surprising, you might say, as Australia was originally populated by convicts but the irony of it is that there is no country more constrained by regulation and petty officialdom than Down Under.
Why is it that the law, or rather the application of the law, has such a bad press? In a civilised society, the framework of a liberal, rules-based order, laid down by precedent over centuries, a set of rules to regulate behaviour and to protect our freedoms and rights, is surely a good thing, something that enables us to sleep safely in our beds o’er nights. Yet there are occasions when its validity, and its arbitrary application, can jar. We rail against a law or regulation that is un unenforceable, we hate an edict that lacks logic and is just plain stupid and we cannot understand when a law, enshrined to protect us, is not enforced or is done so loosely or negligently. We deserve better but so often we feel let down.
I recently had my will updated. I signed the document as instructed but I had no idea what it said… and I am an English graduate. Ah, but it must be watertight, I was informed, so there can be no possibility of misinterpretation. I couldn’t interpret it, let alone misinterpret it. I have a sneaking suspicion that solicitors use impenetrable language, often finding its origin in mediaeval, archaic expression, as a kind of ‘closed shop’. Only we, the lawyers, can understand these documents; therefore, we can charge what we like in the sure knowledge that you have no alternative but to engage us. A cartel by any other name, though ironically it is perfectly legal.
I have often wondered why Latin is still used in the legal profession. I have a sprinkling of knowledge of Latin gained from my O Level in the subject, but most ordinary people have not studied the language. Might this be a case of the emperor’s new clothes,
pretentiousness, pomposity, making something sound important that really isn’t? Here are a few, some less understandable than others: de facto, de jure, ex officio, ex post facto, ibid, in re, mens rea, mutata mutandis, obiter dictum, pro tem, res ipsa loquitur, sine die, sui generis, ultra vires. What is wrong with plain simple English?
Legalese – the language used by lawyers that is difficult for ordinary people to understand – is another weapon used to baffle us. Examples abound. Here are a few: ‘convey and bequest’, ‘the parties hereunto, direct, indirect, consequential, exemplary, incidental, special or potential damages’, ‘aforementioned ambulatory will’, ‘bailiwick’, ‘causation’, ‘chattels real’, ‘engrossment’, ‘interlocutory proceedings’, ‘notation’, ‘plenipotentiary’, ‘quarter days’, ‘rescission’, ‘testator’, ‘tortfeasor’, ‘wayleave’. Once again, I suspect dark forces at work. “If you’ll just sign here, Sir. And that will cost you £150.”
Terms & Conditions. Nobody ever reads the small print before ticking the box ‘I agree’. So why are they there? Is this another trick to mislead us or to obfuscate a hidden agenda? If it is just a box-ticking exercise, why are we forced to jump through this hoop? If you browse Terms & Conditions on the internet, you will find law firms touting their wares, offering their services to construct a template for your website or app – at a ‘reasonable cost’, of course. Like me, are you driven up the wall by those advertisements on the television and radio that end with a garbled message of the Ts and Cs, delivered at 100 mph and impossible to understand? If the seller doesn’t think it’s a worthwhile message and therefore has no need of careful diction, why have it at all? The same with the small print – I would more accurately describe it as miniscule print – on the back of any product we buy. I took hold of a magnifying glass once to attempt to read the Ts and Cs, and warnings, on the side of my daughter’s stair gate for toddlers. It was written in Chinese!
I know, I know, very infuriating, I agree….but it’s the law. We have no option. But if it’s a law of which nobody takes any notice, then it is pointless and a nuisance. I attended a funeral last week. Did you know that it is illegal to linger around the grave after the burial? There were 20 or so of us breaking the law that day but did anybody care? Did anybody know? It’s illegal to be drunk in a pub. It is a treasonable offence to stick a stamp on an envelope upside down, even unintentionally. It is against the law to sound your horn in anger. It is against the law to use your mobile, even idling in a queue for a drive-thru. (I don’t believe I have just written that ghastly abbreviation.) It is an offence to carry a plank of wood along the pavement. There are numerous other examples of absurd and unnecessary laws that are either obsolete or impossible to prosecute.
Ludicrous signs are there purely because some by-law requires their presence. For example, being warned that there are traffic signals ahead seems pretty pointless; if you cannot see traffic lights when you approach them, you probably ought not to be driving. And only a blind man would not see that the pavement is blocked, so why the sign ‘footway closed’? (Needless to say, a blind man would not see the sign anyway.) Patronising instructions irritate me also. ‘Take care on the elevator’, ‘please hold onto the handrail when descending the stairs’, ‘in the unlikely event of landing on water….’ And so on. Unconsciously humorous instructions on goods and packaging bring forth a wry smile: ‘sleeping pills – may cause drowsiness’, ‘peanuts contain nuts’, ‘do not use this blowtorch to dry hair’ etc, etc. If there were no law stipulating these asinine, infantilising instructions, there would be no need for them; as it is, they are an insult our intelligence. As usual, Winston Churchill put it better than most:
“If you have ten thousand regulations, you destroy all respect for the law.”
So, what am I contending? That we do away with all laws? That would be anarchy. Put simply, the law is there tomaintain order, establish standards, protect liberties and resolve disputes. We can all agree on that. In the play ‘A Man For All Seasons’, Thomas More (a lawyer, by the way) is arguing with his headstrong son-in-law, William Roper:
“When the last law was down, where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast – man’s laws, not God’s – and if you cut them down, do you really think you could stand upright in the winds that would blow then?”
But even Thomas More could not stomach a law which forced him to agree to the King’s illegal divorce from Catherine of Aragon in order to marry Anne Boleyn and he went to the executioner’s block because his conscience would not allow him to sign. Not all laws are good laws.
Not all lawyers are rogues and crooks, of course not. There are times when all of us have need of legal advice and are pleased to have it given clearly and dispassionately (if expensively). But the whole panoply of the law, the archaic language, the ceremonial attire and the lofty formality, the pomp and the ritual, are designed to intimidate; we are supplicants, and the legal profession is there to tell us what we can and cannot do. Which grates.
Perhaps there will come a day when I am grateful for the services of the cleverest barrister in the land to defend me at the Old Bailey on a charge of murder. Oh, but I forget – all the lawyers have been shot.