Monday, 18 May 2009

Justice delayed is still justice denied, but . . .

I’m in two minds about Simon Power’s latest justice reforms.

A radical review of the welfare system for lawyers that is legal aid is long overdue.  Regular readers of this blog would know that I’ve long been a fan of removing lawyers from sucking off the state’s tit, and replacing legal aid welfare payments with a public defenders’ office.  There’s no species more venal than lawyers making up their bills (un less of course it’s politicians making up their expense claims).

In fact way back in 2005 I wrote that with some very few noticeable exceptions, the more I see of lawyers and their venality, the more I find myself in favour of nationalising the lot of them. When you consider the justice of removing their taxpaid path to riches, you might consider the words of H.L. Mencken:

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.
Ain’t that the truth. Simon Power should send the country’s lawyers a copy of Mencken’s words on a piece of stiff parchment, with the advice that if they disagree with being removed from the state tit that they fold it until it's all sharp corners, and then insert it where the sun doesn't shine.

So legal aid can go.  I’m quite comfortable with the concept of the public defenders’ office instead. But I’m not so happy to see the right to a jury trial so peremptorily dismissed. The right of a person to choose to be tried by a jury of their peers is just one valuable, time-honoured legal protection against innocent people being rail-roaded into prison. 

It is certainly true that the wheels of NZ justice spin slowly – and it’s true too that justice delayed is justice denied.  But the cure for this is not to remove legal protections to make it easier to lock people up – they key fix would be to remove so many of the ridiculous laws on our books that clog the justice system up.  Restrict law only to those that protect individual rights, you can take a chain saw to the country’s statutes.

Back in the 1800s lawyers like Abraham Lincoln could ride around on horseback from trial to trial with only three legal books in his saddlebag, one of those being a copy of Blackstone’s Commentaries on the Law of England, the bible of English-speaking law for more than a century.  Right now that lawyer on horseback would have to be a accompanied by a whole wagon train of toadies towing a whole caravan of legal books, if they were to carry with them all the laws that now assail our country.

Start hacking back the intrusions of excessive law and regulation, and you’ll find that courts will unclog themselves very quickly.


  1. I actually tend to agree with you but I am laughing at a libertarian actually wanting to nationalise something.

  2. Although I largely agree with your sentiment, it's a bit more complicated. Let's take the main proposition that you will support, namely that the only valid task that government has is to uphold property right. (on the premise that all other rights ultimately derive from that). You would still have to define property and the entities that can actually hold or exercise rights. (This already necessitates a substantial body of law dealing with persons and property). The next proposition you would support is that individuals (but note that this includes legal persons), can freely contract. This then requires a body of law to define the fundamental principles involved to prevent fraud and the like. There must be a body of rules that governs family-type relationships, of course not all the PC stuff we have now, but there must be a basic structure that defines fundamental matters. The legitimate state function of protection of property rights necessitates a system of criminal law as well, and no government (not even the most restricted) can function without a system of public and administrative law. If you accept that the task of government is upholding rights, than it requires some sort of justice system, and that requires a body of adjectival law (law of procedure). So you see, even an extreme minimalist government (an idea I wholeheartedly support) cannot do without quite a substantial amount of rules and procedures that by all understanding fit within what we can only call a "legal domain". Conclusion: don't kill all lawyers as of yet.

  3. "Start hacking back the intrusions of excessive law and regulation, and you’ll find that courts will unclog themselves very quickly."

    There were about 20,000 drug convictions out of about 430,000 crimes in the 2008 year.

  4. And what were the other ones?

  5. Get rid of legal aid - an idea whose time has surely come!

    But why oh why not just stop there!

    Why on earth is access to legal counsel more important that access to food, to housing, to anything else? People make choices: some people choose to save for lawsuits, or pay insurance - other people don't

    The public defenders office is just another huge example of the evil moral hazard of welfare.

    Cancel legal aid. Enough said.


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