The middle class can't buy justice

Bonam · February 12, 2011

Because that isn't the legal system we have. Our system considers the history of decisions in order to ensure fairness in those decisions. Newer decisions, of course, hold more weight, but to just suddenly disregard past decisions does anything but ensure fairness. There is, of course, much leeway within precedent, but only so much.

I understand that that is the "system that we have". I've hit this same spot in discussions with you before: you say that something is the way it is, and that's that. That is not what I am discussing, however. Just because something is the way it is, doesn't mean that that's the way it ought to be.

Bonam · February 12, 2011

Pardon my ignorance, but why should there be? Our civilization hasn't rebooted or become simpler.

Just to add some more to my response to this post... I would say that while our civilization has certainly gotten more complex, the most fundamental aspects of living life have actually gotten much simpler for most individuals (in advanced countries). To ensure your basic necessities of life is far simpler than it ever was: water comes out of the tap, food is ever plentiful and abundant at a store within a few blocks of where you live, advanced health care is provided to all, your rights and safety are protected the vast majority of the time automatically without you even having to think about them. Access to all of these basic necessities of life, these "rights" as some might call them, has been made very very simple indeed for us. And yet, when it comes to the right to justice: that has done the opposite, it has become far more complex.

So, I would argue that the difficulty of accessing and understanding our legal system is not just a symptom of our civilization growing more complex. The purpose of our civilization becoming more complex and more advanced is to make things easier and more convenient for people, to improve their lives: that is the driver of innovation. Our justice system has not followed suit, it has not become easier or more convenient. This trend is an aberration, not the norm.

Edited February 12, 2011 by Bonam

Smallc · February 12, 2011

I understand that that is the "system that we have". I've hit this same spot in discussions with you before: you say that something is the way it is, and that's that. That is not what I am discussing, however. Just because something is the way it is, doesn't mean that that's the way it ought to be.

I think you missed something - I'm saying the system is fine the way it is. It can't be an accident that countries served by Common Law seem to do very well overall. That said, if you want a different system, you can always move to France (or to get half way to it, you can move to Quebec).

Leaving that aside, changing our legal system would be next to impossible. It is what it is, and so that is very much a valid argument, leaving aside the fact that I'm happy with the system (even if I'm not always happy with the laws within it).

Edited February 12, 2011 by Smallc

Smallc · February 12, 2011

Our justice system has not followed suit, it has not become easier or more convenient. This trend is an aberration, not the norm.

Hasn't it? You say it isn't hard to find food and water. Well, is it hard to find someone with legal knowledge (a lawyer). No, in fact it isn't. Is the system that gets the food and water to us safely simple? Not by a long shot. Your analogy doesn't fit.

Bonam · February 12, 2011

I think you missed something - I'm saying the system is fine the way it is. It can't be an accident that countries served by Common Law seem to do very well overall.

Whether the system is "fine as it is" is open to debate. The system is extremely expensive, and cases can take very long to resolve. A large and growing portion of our society's resources are allotted to lawyers and other middle-men of the legal system. In the US, for example, legal costs add vast expense to their already very expensive health care.

As for countries served by common law doing well... sure, that's true. But you could just as well claim that the countries that are served by the English language are doing well. That doesn't mean that it is the language that is superior, or that it is the cause of these countries doing well.

Edited February 12, 2011 by Bonam

Muddy · February 12, 2011

Here is a sample of a legal system and not a justice system. You get sued by a competitor who has the money to back them. Your a fledgling business. Your lawyer will advise you to counter sue.The case will be tied up for years. You will have to bare everything in discovery. You will have to find gobs of dough.The whole exercise is to eliminate you from the business scene. if you do manage to survive ,the lawyers will settle on the court house steps and you will go your separate ways. Broke,angry, and with no justice. I know I have been there. It is legal to do this.

Smallc · February 12, 2011

civil law is something very different, and that's what you're talking about there.

Shwa · February 12, 2011

Hasn't it? You say it isn't hard to find food and water. Well, is it hard to find someone with legal knowledge (a lawyer). No, in fact it isn't. Is the system that gets the food and water to us safely simple? Not by a long shot. Your analogy doesn't fit.

Well, it doesn't fit perfectly, but considering the OP, it seems to fit fine enough. The whole point was the sheer expense of accessing the system. And while it might be easy to find a lawyer, it is much easier to buy food and water. But of course, justice is not a necessity for life. Or is it?

I think what Bonam is referring to is refinements to the system which make it more affordable and easier to access for the middle class than it is today. However, if that were the case, then perhaps we would become a litigious society where suing someone is like getting mail. Would that make things any more "just?" I wouldn't think so.

I am surprised that the whole discussion at this point has revolved around lawyers and lawyer fees. I think the refinement of the system has to start with the position of judge and it has to be an open position and open to the commoner, likely as an electable position.

Smallc · February 12, 2011

I am surprised that the whole discussion at this point has revolved around lawyers and lawyer fees. I think the refinement of the system has to start with the position of judge and it has to be an open position and open to the commoner, likely as an electable position.

I completely disagree with that. For judges to become non professional puppets of the mob electorate who worry about nothing but the chance to keep their jobs would be the ultimate injustice. The common man doesn't have a place in the professional world.

Wilber · February 12, 2011

I completely disagree with that. For judges to become non professional puppets of the mob electorate who worry about nothing but the chance to keep their jobs would be the ultimate injustice. The common man doesn't have a place in the professional world.

Smallc for King.

Smallc · February 12, 2011

Smallc for King.

That doesn't even make any sense. But no, I don't think that elected officials should hold all power, because quite frankly, I trust the people, as a group, far less than anything else. People are idiots sometimes (or often).

Edited February 12, 2011 by Smallc

Evening Star · February 12, 2011

Seriously, I wouldn't wanted elected untrained judges any more than I'd wanted elected untrained doctors.

Wilber · February 12, 2011

That doesn't even make any sense. But no, I don't think that elected officials should hold all power, because quite frankly, I trust the people, as a group, far less than anything else. People are idiots sometimes (or often).

Kings are only accountable to themselves and each other, seems you want the same for all professionals.

A bureaucracy unchecked eventually becomes a system whereby the people exist to serve it, not the other way around. Police now spend far more time doing paper work to satisfy rules of evidence and disclosure than they do policing. Simple cases take months getting to court and more serious ones take years. Cases are thrown out because it takes too long to prepare them and who knows how many are not even prosecuted for the same reason. That is not justice.

The wheels of any system left unchecked eventually grind to a halt because its gears get jammed up in their own crud. A legal system is no different.

Smallc · February 12, 2011

That's why we have a political system to help shape the legal system. That is where we get our say. We don't get to say that we don't like the rules in the middle of a trial, and decide to suddenly change said rules because it's popular. Police often don't follow the rules, and that's why it has come to a point where they have mountains of paperwork. They too must be held accountable to their own and to the system which they serve, just as is the case for judges.

Wilber · February 12, 2011

That's why we have a political system to help shape the legal system. That is where we get our say. We don't get to say that we don't like the rules in the middle of a trial, and decide to suddenly change said rules because it's popular. Police often don't follow the rules, and that's why it has come to a point where they have mountains of paperwork. They too must be held accountable to their own and to the system which they serve, just as is the case for judges.

Accountability doesn't have to mean navigating a maize that grows ever larger and more complicated. Unfortunately we seem to have a legal system that is now shaping the political system. Courts decide how they will enforce laws and courts are not accountable to anyone but themselves. The result is many people calling for mandatory minimum sentences for certain crimes with some judges saying they will ignore them. So much for accountability.

Certainly we can blame the Charter for a lot of it. I really don't think those who wrote it considered the impact it would have on the legal system. Either that or they didn't care. It often as not results in justice denied just because of what is involved in trying to comply with it. Funny though, I predate the Charter and really don't recall Canada being a living hell before it came in.

I think your last sentence sums it up nicely. They serve the system, not the people or justice.

Edited February 12, 2011 by Wilber

WIP · February 12, 2011

Here is a sample of a legal system and not a justice system. You get sued by a competitor who has the money to back them. Your a fledgling business. Your lawyer will advise you to counter sue.The case will be tied up for years. You will have to bare everything in discovery. You will have to find gobs of dough.The whole exercise is to eliminate you from the business scene. if you do manage to survive ,the lawyers will settle on the court house steps and you will go your separate ways. Broke,angry, and with no justice. I know I have been there. It is legal to do this.

The legal system is just one more example of why the notion of a level playing field is a total fiction. Money buys the best education, the best tax shelters, a home in the best neighbourhood, and as noted - money also buys the most optimal court settlement. If you have the money, you can afford to hire an army of lawyers to keep the courts busy.

Edited February 12, 2011 by WIP

Shwa · February 12, 2011

I completely disagree with that. For judges to become non professional puppets of the mob electorate who worry about nothing but the chance to keep their jobs would be the ultimate injustice. The common man doesn't have a place in the professional world.

Well, there are a some things wrong with your disagreement.

1. Elected judges are not necessarily non-professional and, in fact, good ones could be elected in perpetuity and make quite a nice career out of it. Some politicians do.

2. The "mob electorate" is that which judges - and the justice system - must ulimately be accountable to. They are going our bidding, not the other way around.

3. The "mob electorate" includes all professionals.

Smallc · February 12, 2011

1. Elected judges are not necessarily non-professional and, in fact, good ones could be elected in perpetuity and make quite a nice career out of it. Some politicians do.

You said it should be open to the common man, so what do you actually want?

2. The "mob electorate" is that which judges - and the justice system - must ulimately be accountable to. They are going our bidding, not the other way around.

Actually, no, they aren't doing our bidding. They're maintaining order in a system that we have set up that contains laws which we create. They ensure that things happen fairly and without prejudice.

3. The "mob electorate" includes all professionals.

If it only contained those professionals, then I'd trust it far more.

Shwa · February 12, 2011

You said it should be open to the common man, so what do you actually want?

My apologies, I figured by using that phrase you would have understood it to mean "common" Canadians, those without any other qualifier.

Actually, no, they aren't doing our bidding. They're maintaining order in a system that we have set up that contains laws which we create. They ensure that things happen fairly and without prejudice.

What are laws?

If it only contained those professionals, then I'd trust it far more.

You lose points for being elitist. Besides, practically everyone that votes is a professional in one way or another.

Scotty · February 12, 2011

What does a statement like this even mean? We have a system of justice. Just doesn't mean severe penalty of what you thin if fair, either.

We have a legal system, not a justice system. In a legal system, justice is immaterial, or at least, of secondary importance compared to the letter of the law. Thus however unfair it might be for, say, a nasty guy in a top hat and black coat to push a mother and her orphans out into the cold having swindled them out of their home, well, that's too bad. If he did it legally that is what the system cares about. If we had a justice system, then justice would have to ultimately prevail, regardless of what a contract said, for example. Defining justice might not always be easy, of course.

Smallc · February 12, 2011

My apologies, I figured by using that phrase you would have understood it to mean "common" Canadians, those without any other qualifier.

And so, they would not necessarily be professionals.

What are laws?

They are things created by our elected representatives, under pressure from us. It's the job of the judiciary to ensure that those laws are fairly enforced, without changing things willy nilly.

You lose points for being elitist. Besides, practically everyone that votes is a professional in one way or another.

I didn't know I was getting scored....and no, not everyone is close to a professional.

Smallc · February 12, 2011

If we had a justice system, then justice would have to ultimately prevail, regardless of what a contract said, for example. Defining justice might not always be easy, of course.

The justice that you're talking about is a very finicky concept. The legal system that we have is based on the idea that justice is shaped over time by treating each case similarly and fairly under the law. It isn't simply based on our feelings at the moment.

Shwa · February 12, 2011

And so, they would not necessarily be professionals.

But of course, you understood my point to mean that only those commoners - everyone except the professionals - should vote for judges. That's what you thought I meant right, when you redefined it as "mob electorate?" Because I am pretty sure no rational person excludes the professional class when they talk about the "mob electorate." Well, except maybe you.

They are things created by our elected representatives, under pressure from us. It's the job of the judiciary to ensure that those laws are fairly enforced, without changing things willy nilly.

I see, so that's your fear right there, the changing of "things willy nilly." Is that how they do it in the US or do you have some other horrid examples to cite of some "willy nilly" changes going on in some other western country? Besides, election of judges in no way implies "willy nilly" changes.

I didn't know I was getting scored....

Yes, that much is apparent.

..and no, not everyone is close to a professional.

No? Is a farmer or miner a professional in your eyes?

Smallc · February 12, 2011

But of course, you understood my point to mean that only those commoners - everyone except the professionals - should vote for judges. That's what you thought I meant right, when you redefined it as "mob electorate?" Because I am pretty sure no rational person excludes the professional class when they talk about the "mob electorate." Well, except maybe you.

I'm saying it's a dumb idea, either way.

I see, so that's your fear right there, the changing of "things willy nilly." Is that how they do it in the US or do you have some other horrid examples to cite of some "willy nilly" changes going on in some other western country? Besides, election of judges in no way implies "willy nilly" changes.

In the US, judges do at times make questionable decisions that are later overturned by higher, unelected courts, so yes, it seems to.

No? Is a farmer or miner a professional in your eyes?

No, and neither am I.

Scotty · February 12, 2011

Justice is a term though that we seem to take to mean what we think should happen. Without clear, denied legality, there can be no justice in a human system. You or I may not like the outcome, but that doesn't mean that the outcome isn't just.

Justice is not the overriding concern of the law, and nobody says it is. There are innumerable cases of law, in torts, in criminal law, where fundamental injustice has been done - and which everyone concerned admits was done, and yet the law does not care. The law cares about interpretations of legal statute, which includes evidence which the statutes say ought to be admitted, and discards evidence which should not be. It's all about interpretations of words on paper, not about fundamental justice and what is right or wrong.