We are in the midst of an explosion of change, but our social institutions are failing to keep pace. It is high time lawyers began some soul-searching to see to what extent they are to blame.

Lawyers continue to be an inward-looking, self-perpetuating but very influential elite unable to break out of their own narrowly limited field of vision. The consequences are more damaging to society than is commonly appreciated.

Lawyers continue to dissipate their efforts on trivia. First, they spend far too much time on irrelevant and seemingly unrelated details. Second, they have not the perspective to see the extent to which the institutions they perpetuate are biased in favour of the affluent and the powerful.

They continue to spend most of their time serving the affluent or the pressure groups who are able to pay, and give scant regard to the wider interests of the rest of the community, and despite some charitable gestures, have little time left for those who most need their services.

Third, even when they are dealing with these problems their skills and intellectual base are not wide enough. The insights provided by social cost-benefit analysis and the wider perspective of other social sciences, not to mention the efficiency of computers and office systems, have largely passed lawyers by.

The lawyer's irrelevance

Much of the lawyer's time is wasted in negotiating the jungle he himself has created. Time is wasted on arguments about minute evidential points or in filling out masses of largely superfluous documents or in arguing about definitions instead of substantive issues.

They are obsessed by the need to maintain the facade of the logical inevitability and profundity of legal reasoning when sociologists have long since exposed the very wide value of choice and therefore political power that dispute settlement gives to a judge or lawyer. They are losing the ability to cut through details to the relevant problems.

Most of the examples are too difficult to understand without a legal training, because the job of creating complexity has been so well done. But two are the artificial and irrelevant rule on capital and income which so dominate our creaking tax system, and much of the out-of-date and unnecessarily complex property law.

Most of these observations are obvious to anyone but a lawyer. But the consequences are probably not as widely understood by an outside observer, and are significant.

First, the impact of lawyers opting for conservatism and irrelevant trivia has an important impact on the snail's pace development of our social institutions.

Lawyers have made little more than token contributions to the crucial issues of modern society which fall within their natural domain.

The problems are mostly a variation of one theme: the critical need for control of bureaucratic structures to make them more responsive to community goals as expressed by democratic processes. They include conscious direction of technological growth and all the related problems, such as pollution control and industrial relations, restoring sanity to town planning, more fair and thoughtful tax laws.

Second, the legal system reflects, for those with the perspective to see, a firm bias against underprivileged groups. Third, the community must bear a cost for the routine work of the law which is heavier than it should be.

The lawyer as a politician

The community is usually content to leave the settlement of disputes to the legal experts. What they do not realise is the profound effect dispute settlement has in creating new rules and institutions in our society.

When, for example, a judge decides that a migrant, with scant appreciation of our law, is bound by the strict terms of a hire-purchase contract, the judge legitimises a whole hire purchase industry and way of living on the never-never.

Lawyers see the whole system of deciding disputes by precedents as a framework which they can use to temper the idealism and slick logic of ivory tower social scientists with old-fashioned stability and common sense.

The trouble with that approach is that a lawyer's common sense is too often two generations behind that of the rest of the community. His approach mirrors his whole range of social attitudes, his laissez-faire premises and his own view of society just as much as that of politicians arguing on the two sides of an abortion or nationalised medicine debate. The only difference is that he does not have to answer to the electorate.

The very conservatism of the legal profession, the seriousness with which they still solemnly dissect a 1601 statute to answer major tax policy questions about charitable exemptions, they way they speak in language of hushed submissiveness to judges or wear wigs in battle, so ungainly in a world where people walk on the moon, is ample proof of the power of conservative values in the profession.

Unfortunately, that conservatism is not confined to the quaint ceremony. It is not confined to particular rules. It permeates their whole approach to the working law.

Biases in the system

Few scholars would now challenge the proposition that the law, right through the spectrum, from criminal law through contract and consumer remedies to taxation, has a bias favouring the affluent and powerful. If most members of the public could fully realise just how loaded the average contract is their hair would stand on end.

For example, every time a member of the public enters a bus he is entering a contract which may well entirely exclude any responsibility by the bus company for injuries, no matter how badly the passenger is injured or how much that company is to blame.

Another example is a common standard form contract signed by many buyers of a popular new car. It binds the purchaser to buy the car at the price fixed by the company, to accept delivery at any time, and says that no matter what the salesman says his promises are to be ignored.

The company, on the other hand, is not bound to even produce a car, so long as the deposit is refunded.

The inequalities are often not a formal part of the legal rules but arise as a de facto result of the operation of these rules. Most important is the fact that legal advice, and particularly good legal advice, not to mention litigation, costs a lot of money. The affluent and the big companies obviously have more of that commodity.

The wastefulness of the law

More than half of the income of an average solicitor is earned from conveyancing. Most of that work is largely routine and adds an unnecessarily large cost to house purchases.

The fees can be maintained because the legal profession has a monopoly, or virtual monopoly over conveyancing. If all land were under the Torrens system of registration, as it should have been years ago, and systems analysts were put to work, conveyancing would be little more difficult than processing order forms to wholesalers.

Who pays for this expensive squandering of valuable time? The community, through increased housing costs and rents. The community suffers in many ways.

It pays to train lawyers, thereby giving them expertise and in turn, an interest in preserving the current system. It loses a proportion of the scarce young innovative minds which should be directed to more important issues. It gives them a monopoly and pays the high fees.

The prospects for change

Why has reform of the profession been so slow and how do lawyers manage to insulate themselves from a country rapidly changing around them?

There are two main reasons. First, legal training and the year of apprenticeships as young lawyers effectively condition new lawyers into the professional myopia and sort out the non-conformist before he can wield effective power. The profession controls its own hierarchy, the judiciary and in the large part the legislature because the attorney-general is always a lawyer.

Second, because the system is so complex, only lawyers can change it and lawyers are very rigorously disciplined by a number of formal and informal constraints against criticism of their own legal institutions.

It is ironic that one of the most influential groups in a free society should impose such rigorous medieval restraints over the free speech of its own members. But the profession is replete with self-justification and the repression is traditionally explained by the need to prevent lawyers advertising or to prevent the judicial system coming into disrepute.

The sanctions are very powerful because the profession is controlled by separate bodies over both barristers and solicitors, closed societies which determine their own rules and mete out judgement over their own kind when they transgress.

That they are prepared to use that power and use it hard was recently demonstrated when a senior barrister was censured for suggesting, quite correctly it seems to me, that the submission the bar had made on an insurance scheme for motor accidents was based more on its own vested interests than the welfare of the community.

Even more effective are the informal restraints, the quiet nod or telephone call in a close-knit profession. This informal network has given the profession a unique ability to weed out its own black sheep but it is also effective to ensure an orderly succession of people holding broadly similar views in the positions of power.

Now their review of the profession should not be construed as a suggestion of a Machiavellion plot to subvert democracy.

Lawyers have survived precisely because they have been even-handed in the exercise of their power and have changed over the years sufficiently to contain the clamour for reform and bring their own house back into equilibrium. The law still attracts many good intellects.

The interests of the legal profession and the public often conflict. Complexity and legalism may mean more cost for the community but it also means more work for lawyers.

As power moves to those persons with the scarce commodity of expertise, the lawyer who knows his way through the maze of the complex democratic society dominated by specialists and rules, can demand his price to show others through. It is therefore quite wrong to accord lawyers the degree of unquestioned influence they have when it comes to changing laws or legal institutions.

The present piecemeal patching and half-hearted reforms are not enough. Laws and lawyers must serve the need of the whole community. The law reform bodies must break right away from the present institutions and assess the effectiveness of present laws and procedures from a much wider community perspective.

But even more important is the role of the universities. They must, as a central priority, actively generate an informed debate on the direction in which the law and legal institutions are moving.

The government should use its pursestrings to ensure that either sociologists are appointed to law schools or law schools start the huge job of redirecting themselves to so that they place the welfare of the community ahead of the perpetuation of the legal profession in its present form.

Both law students and lawyers must be taught the skills and be given the perspective to break the vicious self-perpetuating circle of an increasingly irrelevant profession clinging ever more tenaciously to its power.

Lawyers are still in the best position to initiate effective social change because of their training in the discipline of detailed analytical skills and experience in working with the rules of our present system.

But if the legal institutions do not accord with the needs of the community they must be rejected. The time is ripe for lawyers to do some determined thinking about where our society is going.