Wednesday, 26 June 2013
WHO IS LAW FOR?
One of the most famous clauses of Magna Carta states that law is there for everyone – ‘to no one will we deny right or justice’. But we all know that everyone doesn’t mean everyone. Who was excluded? Quite simply, the charter only included freemen – and huge numbers In England in 1215 were technically unfree and therefore ineligible for the supposed guarantees and protections offered by law. As David Carpenter puts it: ‘The barons might speak of ‘the common charter of the realm’, but it was far more common for some than it was for others’. It was radical enough to frighten the pope into annulling it, but not radical enough genuinely to offer the same legal redress to every human being.
I think my point regarding the pared-down legal aid system is probably pretty obvious – law is not there for everyone (if, indeed, it ever has been). Ken Clarke’s comment about recourse to other forms of negotiation basically means that litigation is only for those who can afford it.
Perhaps a more subtle perspective lies in the visibility of law. By 1300, lots of copies of Magna Carta were being translated into the vernacular and posted in public places. But, as Michael Clanchy points out, this wasn’t so much about legibility as about visibility. The difference being that most of the viewers of the document couldn’t actually read it, but the posting of such a document in the vernacular was a powerful gesture which nevertheless ensured that the specifics weren’t understood in too much detail. There’s obviously a level of hypocrisy here, intended or not. Posting such a document is claiming accessibility for all to legal process, but failing to ensure that all are able to understand their rights.
This is surely a kind of hypocrisy that we should aim to avoid. And one reason why a legal aid system which claims to protect everyone, whilst actually ensuring that legalism remains distant and obscure to many, is surely extremely pernicious.