Thursday, 4 July 2013


I'm going to bore you with one more post on law, and then I'll write about what I got up to last week...

One of the oddest things, I think, in practice about court cases nowadays, is the strategic use of pleas. In other words, pleading innocent or guilty is not just about whether one believes oneself to be innocent or guilty - it's a way of attempting to shape the jury and the judge's response - it's a bargain in many cases.  And one of the alarming predicted consequences of changes to the legal aid system, given that lawyers will be paid a flat fee, seems to be that more people will be persuaded by their lawyers to plead guilty in the hope of a swift outcome.  This makes the notion of 'innocent until proven guilty' extremely problematic, as it rests on the assumption that some people just seem guiltier than others.  And that means that outcomes will more than ever be shaped by stereotypes, labels and reputations.  This is an extremely medieval approach, as in late medieval legal practice, the reputation  or 'fama' of a person could be the element which brought them to court in the first place - it was enough to initiate a case ex officio.  A few years ago, there was a popular knock-knock joke:

Who's there?
O.J. Simpson
O.J. Simpson who?
Right - you're on the jury.

It was proving almost impossible to conduct a legal process without jury members already being extremely prejudiced against the defendant, because the case was so notorious.  In the Middle Ages, the joke would have been pretty much the other way round - one wanted jury members who were aware of the prior reputation of the defendant, as that was part of the case.

Given that stereotypes and reputations are unreliable, often class dependent, and reflect the prejudices of observers as much as the behaviour of the subjects, it seems to me an unequivocally good thing to have left such a system behind.  But have we really?

I thought I'd turn to Montaigne to have a look at what he says on the subject of law.  In his essay on laws and customs, he tells a brilliant story of a young woman who nurses a calf.  She carries the calf around when it's very tiny, and, by force of habit, barely notices how big it gets, and is still carrying it around when it's a fully grown cow.  Given how heavy my little boy is getting, I particularly like the tale!  Typically for Montaigne, the story must be tongue-in-cheek and he not as credulous as he pretends to be.  But it has an important point.  Custom deadens us to the ridiculous, and it deadens us to the unacceptable.  Many of the recent changes to the legal system in recent years have been much talked about - eg. 40 day detention without trial - but many haven't stimulated all that much discussion - eg. changes to legal aid.  It's these little, almost imperceptible changes, which add up in what can add up to some pretty alarming conclusions.

1 comment:

  1. Another interesting post from Oxford's Dr. Hannah Skoda which I've added to WUaS's Law, wiki (editable), subject ... ... (with online Law Schools in all 204+ countries planned -, and which I also just posted to WUaS's G+ page - ). Thanks, Hannah!