In most societies the last thing a person wants to do is to go anywhere near a court of law. A lot of money is wasted and you may lose. So if you want to sort out a quarrel you get your brothers to smash up the other person’s house or seize their property. Or, in a Nepalese village, you ask some senior villagers to come and settle the quarrel in a relaxed way, sitting on the veranda amongst the grain baskets and chickens.
Are English and American courts odd?
Law is a strange process which in many ways goes against the grain of ordinary life. A court is basically a place where people behave in an odd way. They bring their disputes to a complete stranger and after listening and asking questions he or she says one is in the right and the other in the wrong.
If going to court is a strange thing to do, going to an English or American court is an extreme form of this peculiarity. You are asked to ‘tell the truth, the whole truth and nothing but the truth’. In most societies there is no belief that there is an abstract thing called ‘truth’. There are believed to be many conflicting types of truth, factual, social, religious, mythical. Each is ‘true’ in a different way. Furthermore, no-one but a lunatic or a traitor would tell the court something that would hurt their family or friends. People are expected to lie, or at least to tell partial truths.
When you are judged in an English court it is by a curious standard. The ultimate test in the mind of the jury or judge, both of whether your story is true, and whether you have done something wrong, is to ask themselves ‘was this the behaviour of a reasonable man?’ ‘Man’ here is a short-hand for everyone, men, women, upper class, lower class. It is assumed that all individuals should and indeed do adhere to the same idea of reasonableness and that all behaviour can therefore be judged by the same standards.
Almost everywhere else, men and women, rich and poor, old and young are assumed to be ‘reasonable’ in very different ways. Furthermore, reasonable behaviour entirely depends on the social relationship involved. It is reasonable for a man to strike his wife or his son, highly unreasonable for a woman or son to strike back. It is reasonable for an uncle to find a job in his office for his nephew, but not reasonable to find jobs for unrelated people. It is reasonable to pay a bribe to a customs officer or policeman, but not to someone who has no power.
Much of law is concerned with deciding about the behaviour of people who are by birth or achieved position unequal. In Anglo-American law, it is about deciding between people who are considered to be on a level, not intrinsically unequal, even if they appear strikingly different in their education, sex, wealth, race.
It is assumed in modern law that individuals have rights. Men, women, children, disabled people, even the unborn foetus or animals have intrinsic ‘rights’. Very few societies in the world share this view. It is usually thought that an individual only exists as part of a group, he or she has rights in relation to others, which are inseparable from responsibilities. There are no innate rights which come with birth.
The idea that, in the words of the American Declaration of Independence, ‘life, liberty and the pursuit of happiness’ are intrinsic and inextinguishable human rights would be regarded by a large part of the world, even today, and certainly over most of history, as an outrageous claim. When the idea was imported into India in the nineteenth century by the British it caused immense confusion and disapproval. A member of a lower caste, a woman, a child, had never been conceived of as having the same rights as a high caste person, a man, an adult.
This assumption of individual human rights is a very old feature of English law. It has now spread over the world and become a central doctrine of a new form of mission activity. It has many merits. When taken to extremes, without attention to the counter-balancing rights of communities and groups, or the responsibilities that go with the rights, it is as dangerous as rightlessness.
How does law rule over us?
We often hear about ‘the rule of law’, but what does this mean? One idea is that people are prepared to settle disputes through legal process, rather than by force. A second is that all actions and all power is ultimately under the law. Above the rulers there is something higher; they also are under the law.
Usually legal systems develop in a different way. At first the rulers may say ‘we make the laws and we keep the laws’. But after a time they forget the second half of this. They are above the law. So the law does not rule them, they rule the law. You can see this in Stalin’s Russia, Chairman Mao’s China, or France in the later seventeenth century. There is one Law for the powerful and rich and another Law for the people.
Only in England (Scotland had a different system) for a long period of about seven hundred years have we believed that ultimately the Law is supreme and even the King and his ministers have to abide by it. Everybody is under the same rule. Unlike chess, where certain pieces have privileges, the English law gives few privileges, at least in theory.
The ‘rule of law’ depends on uniform application of laws and a common procedure. It means that the legal process should be separated off from the political, that the judges and the courts should be independent. All of this is difficult to sustain. Powerful forces, economic and political, are constantly hoping to bias law in their direction.
How do courts work?
The great problem is to persuade people to accept what you are doing in the legal process. Law is a dramatic and often elaborate affair. People dress up in archaic costumes, the judge sits high up above the court, long-sounding words are used in a strangely formal way. There are often dramatic public punishments, as in the so-called ‘theatre of Tyburn’ where criminals were taken through the streets and executed before the crowds in eighteenth century England.
The legal process takes people out of their ordinary lives where they have become entangled in conflicts. It puts them in an arena that is out of normal time and space. The procedure in the court then re-arranges their lives. You have to exert a lot of pressure in order to persuade people to follow a decision which they may think is against their interest.
So the law is like a game of tennis. People go to a ‘court’. They play a combative game, either on their own behalf or through their representatives, serving, returning, trying to outwit their opponents. The judge is the umpire. After the case is heard, their world is changed. One side has won, the other lost.
What are juries?
In almost all serious legal cases you have a confrontation between the State and the Citizen or Subject. The State has almost all the power and the single individual is inherently very weak. So if the State says ‘you are suspected of an offence’ how can you defend yourself?
When you have a jury system, where it is the duty of your equals (or peers) to decide your guilt or innocence, everything is changed. The jury are not themselves on trial but observers and arbiters. It is one thing to grind down a single individual who is already accused of an offence. It is entirely different to be able to persuade twelve, free, moderately affluent and reasonably educated individuals who have been told on oath to judge as fairly as possible without fear or favour.
So the jury acts as a filter to State power, a protection for the single citizen or subject. It is a key institution in any democracy. Most countries in western Europe had juries of a sort a thousand years ago. Yet almost all had given up the jury system by the eighteenth century. England maintained a jury system up to the present. There are now increasing calls by politicians for its abolition in a wide range of cases.
Should we torture people?
The absence of the use of torture in criminal trials throughout most of English history is a notable feature of its legal system. Very early on the English courts set their face against torture. People believed that if you tortured someone you would not get a true confession. The tortured person would lie in order to make the torture stop. There was also perhaps a certain appreciation of the force in the philosopher Montaigne’s remark that ‘After all, it is setting a very high price on one’s conjectures to burn a man alive for them.’
In English law you did not need the confession of the accused. You proved them guilty or not on the basis of evidence. It has never mattered what the individual thinks after he has been proven guilty. If the jury thinks that you are guilty, you are guilty. You can go to prison or the gallows tree protesting you innocence. That is your right.
This tradition of avoiding the short-cut of torture is also under threat. Some of those engaged in the ‘war against terrorism’ in Britain and America, where torture is currently banned, are now arguing that it should be allowed, or at least the evidence from those tortured by less scrupulous regimes in other countries should be accepted.
How unusual is England?
The essence of English law is the protection of the individual and his or her rights: to a certain amount of liberty, freedom of speech, control of his or her body and personal space and to everything that they own. Ownership includes visible things, like bits of land and houses, but also invisible things, such as intellectual property rights and certain things such as the right to a title or office.
In most societies, law is mainly concerned with interpersonal matters of status and physical injuries. England, in contrast, has been obsessed with property, with civil law, that is cases between individuals who use the courts to sort out disputes about who has rights in what.
Nowadays the principles of an old English system have spread through the former British Empire and the United States. They are so widespread that they have become the normal way of proceeding. Many of the fundamental ideas, for instance the absence of judicial torture, the separation of politics from law and the rules of evidence have become enshrined in the European constitution and elsewhere. This makes it easy to forget that if we had looked around the world in about 1750 we would have been astonished at the English exception.
Does the English system have advantages?
The sophisticated development of property law and safeguarding of economic interests have helped to make England and America wealthy. People can afford to trust each other and if that trust breaks down they can use the legal system. The early development of industrial capitalism could not have occurred without the extraordinary development of English law.
The other main advantage of this kind of legal system is that, on the whole, the majority of people feel safe under it. Without a legal warrant from a Justice of the Peace, the police cannot raid a person’s house or business. Most people most of the time can rest secure that they will not be subject to arbitrary punishment or imprisonment, except asylum seekers and some racial minorities.
If you are thrown into prison you have the right to call a lawyer and the right to know what you are being charged with, and the right to be freed if no charge is brought within a certain number of hours (habeas corpus).
Under the rule of law, an individual is relatively free from censorship of thought and action. Criticism of the authorities, freedom of speech (within reason), the possibilities of reasoned opposition to the present system, are all tolerated.
Some of these advantages of the rule of law are being whittled away. State officials argue that suspected terrorists and asylum seekers should not be given legal protection, they should be imprisoned without charge or trial for long periods. There are those who now fear that once certain categories of people are denied basic legal protection, it will not be too long before we all find ourselves in the nightmare world of Stalin or Chairman Mao.
Are there disadvantages?
People complain about the slowness, cost, complexity and at times inefficiency of the English system. There is something in the satirist Jonathan Swift’s observation that ‘Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through.’ It is sometimes impossible to convict someone who is clearly guilty. The inquisitorial system, where the judge can call for more investigation, might well avoid some of these difficulties.
Yet the main disadvantage of the English system is that it can generate an antagonistic attitude. Much of the English system of politics and social life (including sports) is confrontational. The English legal system is odd because it believes, or pretends to believe, that disputes are resolvable into one person winning (being right) and the other losing (being wrong). If this is accepted, then the best way to sort out difficulties is to get those in the dispute to carry out as fierce an argument as possible in front of a referee.
In divorces for instance, a confrontational legal system can lead to much bitterness. The people who profit most from this are the lawyers, who sometimes have a vested interest in dragging the case out. There is much in life where right is evenly divided and mediation or arbitration, poorly developed in the English legal system, is a much better approach to settlement.
In a Nepalese village all quarrels are settled outside the court and in Japan nearly everything is done through mediation or arbitration. The aim of the Anglo-American system is to cut ties, to have a winner and a loser. The aim of many dispute settlement systems has been reconciliation. Relationships are complex and multi-stranded. People will have to on living close to each other and inter-acting in various ways. It is best that their quarrel is smoothed over, rather than settled dramatically in favour of one or the other.