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The Misrule of Law

Each year, on or around September 16, J.C. Thomas, Dean of the VUW Law Faculty, beats a few students over the head with a large academic mallet. Mr Thomas seeks, under the guise of benevolent dictatorship of the law faculty, to mould students in his own image. The vehicle he has chosen for this purpose is the Law of Contract, a subject which he keeps under his personal supervision and which, being a requisite for the LL.B. degree, is most apt for the purpose of screening future lawyers. The mallet weilding in question is a lecture on the Doctrine of Equitable Mistake, a doctrine whose characteristics are wearily familiar to most law students; yet another case of judicial sidestepping and manoeuvring to avoid an inconvenient (and, who knows, inequitable) doctrine, in this case that of Common Law Mistake.

There is, it is admitted, nothing very extraordinary about this doctrine, being a quite coma-inducingly boring example of the mystification of myth making that form what is laughingly referred to as substantive law. But Mr Thomas doesn't stop there. Gleefully informing his rapt audience that, unless they understand, apply, and adhere to, what is about to be imparted they cannot expect to pass final examinations, be proceeds to explain that his harsh attitude is prompted only by his desire to see that they function properly as lawyers in the future years, and efficiently serve the interests of their future clients. In short, Mr Thomas is defining the role of the lawyer in society, and doing his best to ensure that his students are so socialised in their years with the law faculty that they are incapable of criticising this role.

What is the Thomas conception of the role of the lawyer? Basically he seems to see the lawyer in an extremely conservative role, as the mediator between the legal system as it is, and the individual client. In a document recently distributed to law students regarding the demolition of Hunter, "A Statement of Concern", the faculty stated; "An essential ingredient of legal education is the development in students of an appreciation of the role of the lawyer in the development of society's goals and a sense of the lawyers professional responsibility to clients and to society as a whole. These are subtle educational goals difficult of attainment." Who defines the roles and goals? Similarly Thomas. Above all he sees the lawyer as a manipulator of the legal system in his clients interest. The prime object is to win. This is what the law course at Victoria is designed to do, to socialise the student to accept and to act through the role that the faculty defined for him. If a more general overview of society is extracted from this more specific conception of a lawyers role, what emerges is acceptance of the status quo, acceptance that there is no alternative, that the institutions of our present society are, if not desirable, at least immutable.

What should disturb students is that this view is being forced down their throats, that unless they reiterate it they will not pass (for this is precisely what the law course is designed to ensure). Students must become believers in this social philosophy in order to qualify, though a few hardy souls may slip through. Students are given no chance to investiage the nature of their society and their role as lawyers, for an alternative view might involve a change in the institutions and norms of the legal world. Mr Thomas' view is old, it is tired, it needs examining, and the opportunities should be there to examine it.

I would not emphatically state that this perception of the world is incorrect, but on the evidence of what is happening to western society I suspect that it is irrelevant. Affluence and the frenetic pursuit of wealth and pleasure have left increasing numbers of people normless and lacking in any sense of community. Increasing violence mental illness, disruption and social discontent are all symptoms of a society whose technological capacity for chance and exploitation has out stripped its ethics, the values needed for social cohesion. The law, or the "Rule of Law", has been, in the past, one of the most potent agents for forging social unity — the community spirit and purpose necessary for a vigorous and healthy society. But the relevance of the law in the last 50 years has diminished drastically. Eighteenth and nineteenth century doctrines have no place in a world where it is possible to walk from luxury to poverty and degradation in a few [unclear: ites].

One of the features of the protest trials of the late 60's and early 70's (mainly in the US but also in the UK) was that the defendants all denied the right and the competency of the courts to try them at all. They were confronting the society they sought to bring down, denying the relevancy of the judicial process. Confrontations of this sort appear to have disappeared, but the disaffection exemplified by these trials persists.

It is the duty of law students, both as future lawyers and as citizens to examine closely the most basic propositions and assumptions of the legal process. Enlightened self interest should dictate this if philanthropy does not. To make the law more relevant, understandable, and accessible to the normless, anxiety-ridden and disaffected who seem to be rapidly becoming the majority of the population, should be the prime goal. At the very least if such examination and enquiry is not actively encouraged in law schools, students should be given the opportunity to examine the assumptions that the law is based on, rather than forced into the sort of double think that ultimately makes them unable to make such examination.

Once a student has passed through a law school like Victoria's, his socialisation is such that he refuses to contemplate or admit any attack on the legal process as it is. He is heavily committed spiritually and materially, for the system gives rich rewards (current average about $16,800 p.a.). It is small wonder that socialists see the present legal system as one serving bourgeois and capitalist interest. But the characterisation of the legal system as serving class interests need not continue if law schools are prepared to make the sort of effort I have spoken of. To give students the choice, to destroy the specialisation that allows academics to retreat from the wider considerations of their role into fustian nooks of 19th century obscurity, is of vital importance. It is indeed necessary to know and understand the doctrine of equitable mistake, for the system still exists, but it is vital that students be given the tools and the opportunity to examine and probe the very basis of that system.

"It would be tragic indeed if the law were so petrified as to be unable to respond to the unending challenge of evolutionary or revolutionary changes in society. To the lawyer, this challenge means that he cannot be content to be a craftsman. His technical knowledge will supply the tools but it is his sense of responsibility for the society in which he lives that must inspire him to be jurist as well as lawyer," (from W. Friedmann, Law in a Changing Society).

This, of course, is presicely what the law courses at VUW fails to impress on its students.