Why have so many elements of today’s justice system seized up like arthritic joints?NZ's arthritic justice system has not just denied justice to victims, to litigants and to all those in the dock for years while they await a verdict; it hasn't just denied it to the families of all these New Zealanders; it has not just left people's guilt and innocence in limbo for years; it has not just left a whole mah-jong factory full of lawyers rich beyond their dreams, while delivering little but lawyers' letters and invoices; it has also meant that the arthritis of delayed injustice has fed through to NZ's commercial system, where we find that the delays and the costs of justice are reason enough for justice not even to be pursued, since any gain made in the roundabout of litigation is lost in the swings of delay, and in the litter bin of lawyers' bills.
Contracts below a figure of, say, $50,000 are now hardly worth the paper they're on since a remedy is both too time-consuming and too expensive to realistically contemplate; and contracts between financial unequally parties are hardly worth the risk, since when justice is delayed and debauched as it now is, the winner is generally the one with the biggest pockets -- and of course, their lawyers.
Justice delayed makes a mockery of justice.
Which still leaves the question: Why is this so? Why do we see so much of the justice system and its accoutrements, and so little justice -- why does it take so goddamn long? It's not for a lack of political attention to the question -- as Bassett notes, if anything in recent years we've seen the opposite:
[We've]tried more police, more judges, more prisons and more crisis intervention officers, but our justice system nears a standstill. Many civil litigants have no hope of an early fixture, and dates for serious trials and sentencing take far too long.Almost everything has been tried, says Bassett, but still the problem increases. But let me sound a cheerier note. There are two thing that haven't been tried - or not at least in recent years:
- Fewer laws.
- Better law.
Thought about it? Well, think about this in relation to dire need for fewer laws: Geoffrey Palmer once boasted of preparing and having passed the most pages of legislation in a year, ever. Boasted, so he did. He's now been surpassed. Legislation is now churned out at the rate of, not hundreds, but thousands of pages a year. Last year alone 1,324 pages of statutes were passed, (comprising 76 public Acts and two private Acts) and 2,762 pages of Statutory Regulation (comprising 325 Statutory Regulations). But this was a slow year, due to the election. In the previous year, the respective figures were 2,062 pages of Statute and 4,116 of Statutory Regulation.
That is over six-thousand pages of legal garbage in just one sitting year. No one can digest all that! No human being anyway. Not even the high-priced vermin that infest so many of our local legal high-rises can read all that.
And Geoffrey Palmer has something else to answer for: the making of bad law. When I call for fewer and better laws, objective law is what I mean by that -- law that is clear, precise, predictable, contextual and rights-based. Geoffrey was explicitly opposed to that. He introduced to local law the concept of ambiguous law -- of law that is intentionally vague and imprecise; law that was totally unpredictable, that in order to be 'understood' needed to be defined in lengthy court struggles (with all parties in limbo until it had been clarified, and with justices frequently asking themselves the question: "What was in the minds of MPs when they wrote this?" Cometh the all-too obvious answer: "Nothing at all.").
The Resource Management Act stands as a monument to Geoffrey's slap in the face of objective law, which principles have been all but forgotten. The undefined (and undefinable) "principles of the Treaty of Waitangi" that Bassett bewails, and that has introduced so much uncertainty into the very heart so much recent legislation is another monument to Geoffrey's work (and as I recall, its introduction to so much legislation was the brainchild of and happened with the enthusiastic support both of Richard Prebble, and indeed of Michael Bassett himself).
Setting a scrubcutter to nonsense law, and to nonsense in law, would at once clear the shelves of law libraries and the overbooked schedules of law courts, and it would give effect too to the promise of the Libertarianz unemployment policy, which promises an enormous rise in unemployment ... among the likes of lawyers, law clerks and court booking agents.
A bonfire of rules, regulations and statutes would lead to less work for lawyers, but better access to law, and more justice for litigants.
The astute reader will by now have a number of questions. Perhaps the foremost amongst them is this one: what did I mean by the term "a mah-jong of lawyers"? Ah, I'm so glad you asked. I shall let the great HL Mencken answer that one:
All the extravagance and incompetence of our present Government is due, in the main, to lawyers, and, in part at least, to good ones. They are responsible for nine-tenths of the useless and vicious laws that now clutter the statute-books, and for all the evils that go with the vain attempt to enforce them. Every Federal judge is a lawyer. So are most Congressmen. Every invasion of the plain rights of the citizens has a lawyer behind it. If all lawyers were hanged tomorrow, and their bones sold to a mah jong factory, we'd be freer and safer, and our taxes would be reduced by almost a half.Wise words. I must confess, I enjoyed sharing them with the editor of the Law Society's journal, Law Talk before a recent election. I doubt that he published them.
Perhaps, given the current apoplexy over legal aid rates, he might consider doing so now?
LINKS: Slowing down justice - Michael Bassett [Hat tip, Leighton Smith]
What is objective law? - Harry Binswanger
Policies - Libertarianz
Legal snouts - Peter Cresswell
RELATED: Law, NZ Politics