Has the time come for the common law to be scrapped?

A friend sent me an article from the Centre for Policy and Development entitled “Why Can’t Kevin Rudd Make Proper Legal Policy?” The title is a little misleading, as the piece doesn’t really deal with KRudd or specific instances of failure to make legal policy.

The central thesis of the article is that, although law schools adhere to legal positivism, and attempt to teach the content of law, it is impossible for anyone to say with any certainty what the common law is. Further, there is a lack of understanding of giant areas of the law by many practitioners, and most lawyers and others do not know the origins of the law.

There are a number of arguments made by the article:

1. Truth does not matter to the common law, and thus it fails to deliver justice. It has an adversarial system whereby litigants are asked to prove the truth, rather than judges being asked to discover the truth.
2. There is a cartel of lawyers and judges who seek to maximise their cash flow by making the law expensive and difficult to understand.
3. The adversarial system means that truth is less likely to be discovered. Because it requires litigants to prove their point, it is expensive and time-consuming compared to inquisitorial jurisdictions. It also requires lawyers to take absurd positions on behalf of their clients.

The article suggests:

Russell Fox QC wrote: “… the public estimate must be correct, that justice marches with the truth.”

Reversal of the 1219 decision [to keep the adversarial system in Britain] will thus be welcomed by 99.8 per cent of the population, and by lawyers and judges who believe that law should be about justice. Once truth is accepted as the basis of justice, everything falls into place. The cartel and the adversary system can be abolished by:

• Training judges separately from lawyers, as they do in Europe.
• Giving judges back control of the process.
• Having the trained judges search for the truth unhampered by six rules for concealing evidence and 14 other anti-truth devices.

It then argues that Australia should seek to introduce an inquisitorial system by 2015, or at the latest by 2019. Inquisitorial systems are generally used by civil law countries such as France, Germany, Italy and Japan. Broadly, inquisitorial systems give power back to the judge, who attempts to ascertain the “truth” by gathering evidence from all the parties. Judges are trained experts, separate from the rest of the legal profession. By contrast, in common law countries, each party is represented by an advocate who represents her particular party’s version of the truth, and the judge plays a more passive role, assessing each version on its merit.

This article is predicated upon a number of assumptions. I want to look at each assumption in turn.

1. Cartels and collusion

The allegation is that lawyers and judges form a cartel whereby they collude to maximise their cash flow. The example given is the notorious case of Jennens v Jennens in the Court of Chancery which devoured an entire estate over decades (and also formed the basis for Dickens’ Jarndyce v Jarndyce in Bleak House).

As I have explained before, the Court of Chancery was an entirely separate jurisdiction to the common law. Interestingly, given the enthusiasm of the author of the article for the inquisitorial system, the Court of Chancery was in fact an inquisitorial jurisdiction, as it developed from ecclesiastical law. This in part led to its inefficiency because it took the judges so long to divine what had occurred. It’s not a particularly good example for the modern day - the Court of Chancery was abolished by the Judicature Acts in around 1880, and equity became part of the adversarial common law court system.

If the article is suggesting that judges and lawyers get together in secret rooms and collude to cost litigants as much as possible, then this is rubbish. However, it is true that knowledge is power, and that any group of skilled persons can charge the non-skilled liberally for the privilege of access to that specialised knowledge. It is also true that lawyers tend to wrap their knowledge in jargon and fancy words which mean that it is difficult for laypersons to understand or analyse. This is true of any profession. Sometimes there’s simply no way to describe a particular thing with the requisite precision without using technical or jargon terms.

But I think it is particularly true that some lawyers love to make things as verbose and complicated as they can. I think they believe this makes them look intelligent. Instead, I believe that this does their client and the court a disservice: as I’ve said before, it is much better to present a complicated dispute in a way that is easily understandable, and will lead the judge to conclude that your client is right.