I have written a good deal about access to justice and the related issue of self-represented litigants. These problems are very difficult; I doubt that any quick solutions can be found for them, and it doesn’t help that, as I wrote here, the complexities that must be dealt with are often forgotten. These problems are also very old, and a look at one historical attempt to deal with them illustrates, I think, the unlikelihood of simple solutions being sufficient.
Jeremy Bentham’s “Law as It Is, And as It Is Said to Be,” also (or better) known as “Truth versus Ashurst” (available here, at p. 145) is best known for its savaging of the common law as “dog law:
It is the Judges … that make the common law. Do you know how they make it? Just as a man makes laws for his dog. When your dog does something you want to break him of, you wait till he does, and then you beat him for it. This is the way you make laws for your dog; and this is the way Judges make law for you and me. They won’t tell a man beforehand what it is he should not do―they won’t so much as allows of his being told; they lie by till he has done something which they say he should not have done, and then they hang him for it (148).
What is less well known, I think, is that much of “Truth versus Ashurst” is actually a diatribe about what we today would call access to justice. It begins by denying Justice Ashurst’s assertion that “no man is so low as not to be within the law’s protection.” No, says Bentham, “every man is, who has not from five-and-twenty pounds” ― more, Bentham says, than three times an average person’s annual income ― “to five-and-twenty times five-and-twenty pounds to sport with, in order to take his chance for justice” (145). The Magna Carta promised that justice would not be sold, but “the good King George” does not keep the promise made by “the wicked King John” (145). (This is something for the Supreme Court to keep in mind, by the way, as it considers the constitutional challenge to the “hearing fees” imposed by British Columbia on litigants who seek justice in its courts.)
But the cost of judicial proceedings isn’t not only problem which Bentham bewails. For one thing, he laments, even if a litigant goes to the expense, he can’t be sure of winning; be his right ever so clear, he can easily end up losing on a technicality. And then there are “[t]he lies and nonsense the law is stuffed with, [which] form so thick a mist, that a plain man, nay, even a man of sense of learning, who is not in the trade, can neither see through nor into it” (145). Even if people were allowed to represent themselves, which more often than not they weren’t, they couldn’t hope to succeed under such circumstances. And even that wordy, obfuscating law isn’t at all accessible. Reports of judicial decisions are few and inaccurate; judges detest them and can treat them as contempt of court. Indeed judges themselves have only a faint idea of what the law really is ― that’s where the “dog law” rant comes in: judges don’t tell us what the law is until one of us has broken it and it’s too late, for him at any rate.
So Bentham has a pretty simple solution: codification. Take what little is good in the common law and make it into statutes. “[I]f what is common … to every class of persons were put into one great book, (it need not be a very great one) and what is particular to this and that class of persons were made into so many little books, so that every man should have what belongs to him;” (149-50) and if these books were written in clear language, in “sentences of moderate length, such as men use in common conversation” (150); and if the contents of the great book were publicized, and taught, and “if every boy when he came of age were to produce a copy of it written with his own hand before he were allowed a vote or any other privilege,” (150) then everyone would know the law, and could be his own lawyer. And thus we would be “deliver[ed] out of the clutches of the harpies of the law.”
Well, that didn’t work out. France, Germany, and other civil law countries are not out of the clutches of lawyers. Codes still need judges to interpret them and lawyers to argue about these interpretations. In common law jurisdictions, statutes have proliferated ― and so has case law. Now the case law is easily accessible these days, thanks to CanLII and its equivalents elsewhere, but its sheer volume makes it difficult for laypersons to make sense of it, or of legislation for that matter. And, though we have (some) legal aid now, the cost of legal services is still prohibitive for many, many people.
The point is not that we should throw up our hands. I think that things are at least a little better than they were in the bleak picture Bentham paints (though he was rather fond of bleak pictures, so one wonders whether it is quite faithful to the reality of his time). But we should be wary of easy fixes; they are not likely to succeed. It will take a lot of hard thinking and hard work to give everyone a chance for justice.
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