Practising law with a provisional licence

November 18, 1994

Academia is not for the faint-hearted: constructionists are knocked down by deconstructionists, structuralists are challenged by poststructuralists, feminists are attacked by revisionist feminists, colonialists by postcolonialists and so it goes.

To an extent there is some element of fashion following in all these new critical positions. Academics do not want to be left behind, faithfully sticking to paradigms that no one else recognises as anything other than yesterday's discredited theoretical framework. Even legal scholarship, with its image of certainty based on time-out-of mind-practices, and not known for its rapid reaction to the latest pronouncements from Paris or Yale, is full of vigorous divisions and doubts.

The thing about law's doubts is that they show themselves in a rather public way. For example, there is a crisis in funding legal aid and not all the alarm expressed by lawyers on the dangers of leaving people inadequately represented is merely an expression of self interest.

Furthermore, the seemingly endless miscarriages of justice cases create an atmosphere in which the very existence of the democratic legal system is brought into question. Added to this are unseemly squabbles among the lawyers themselves, as they argue over which of them, wearing which antiquated costume, should be entitled to bar or solicit which types of work; how many of them in which court should receive "refreshers" at what rate; who can be approached by the public direct; who takes what steps in litigation, conveyancing and so on.

To try to summarise the causes of dissatisfaction with the legal system and the lack of respect which besets it is not easy, but academic lawyers must cope with both the doubts about the justice and efficiency of the legal system that are now publicly expressed and the conflicting intellectual claims that have invaded the academy generally. There is no quick answer to the struggles threatening the traditional certainties of lawyers but if, rather riskily, we were to try to identify one particular element of study which, while blindingly central to the well being of a legal system, seems to have been neglected, it is the relation between law and justice.

It is almost as though in the excitement over particles, tops and bottoms, matter and anti-matter, gluons, muons and black holes, physicists had forgotten that under most conditions gravity, more or less as Newton understood it, still needs to be taken into account. In law, this equivalent temporary amnesia over the role of justice partly relates to the modernisation that all areas of social relations have undergone. The courts are still known as the Royal Courts of Justice, but law has become more a process than an ideal, more a Weberian bureaucratic application than an aspiration towards one of the greatest goals society has set itself. Most law students would be prepared to state, if asked, that the operation of the law in general terms should be related to considerations of justice. But how many students, let alone practitioners, have the time to go beyond some rather crude version of Aristotle on the origins, meanings and importance of "equity", and then only when reminded that the very ground rules of the legal system are being ignored? The old question: is the law law because it is just or is the law just because it is law does not seem to worry legal academics.

To say that justice is the gravity of the legal system still leaves justice undefined, and to define justice is notoriously difficult. We might start by saying that two broad grounds of legal legitimacy and justice are generally on offer. The law is legitimate if it has been democratically legislated by the representatives of the people and if its principles are universally valid. Laws are just because they are self-created, and in their generality and reasonableness allow of no exceptions or considerations of individual circumstances except to the extent that the individual conforms to this self-evidently valid framework. The law is just if it applies general rules in a uniform manner.

By contrast, the French philosopher Emmanuel Levinas starts from the singularity of the other person, expressed in the metaphor of the uniqueness of the face. In his philosophy, all social relations, not only justice, are first ethical. They are based on the command "do not kill me" upon which all intersubjective communication rests. Philosophy has always argued that the other can be examined on the basis of self, the other is an alter ego which can be reduced to the essential attributes of the self. This is the way that philosophical propositions, as traditionally conceived, are grounded. Differences are there to be overcome, and by extension the outsider, the stranger, the outcast or the beggar is to be reduced to the same standards as the philosopher's own in order that philosophical and ethical principles can be specified.

For Levinas, the metaphor of the face is used to indicate that the other is never fully amenable to complete understanding. Others depend on definite, concrete, historical circumstances in their encounter with those who try to understand and judge them. One can never know strangers in the uniqueness of their full situation or the suffering they have undergone. And as ethics comes before ontology and philosophy, the first human characteristic is the moral duty to answer the request of the suffering other.

Notions of justice, to the extent that they have any practical relevance in the decisions of the modern legal system, are based on the paradoxical relation of willing submission by the individual to the will of all. This "social will" is assumed to meet the desires and needs of the self, if only the self could be brought to understand the supreme intellectual and social necessity of that will. Add to that some poorly argued Hobbesian anthropology about the necessary evil of human nature which needs restraints imposed by society and the stage is set for the appearance of the coercive judge, the person who makes the decisions that most affect people's lives.

Until modernity, justice was crucially linked to virtues and values that could be derived from a teleology of the good life as lived in the community. With the break down of traditional societies the agreed basis of understanding lost its obvious hold. In the common law, judges take pride in a system which their predecessors have created and which they think they are continuing. Crucial to that tradition is a notion of "reasonableness". What is determined as reasonable by the judges takes little cogniscance of the particularities of the person before the court, the individual circumstances of suffering. In this sense, the judge is always a stranger to the litigants and yet judges apply the law as though they had a privileged access to the individual circumstances of the case. Nevertheless, by introducing an often rhetorical-reference to the "man on the Clapham omnibus", reasonableness is better fitted to the requirements of democracy and generality.

But this utterly reasonable reasonableness is not always as neutral or benevolent as it sounds. One good example of the dangers to which this attitude of the common law judges can lead is to be seen in recent cases where people have applied to this country for refugee status when their basic human rights were being violated in their own countries. The judges have decided that whether the applicants were entitled to stay in the United Kingdom depended not on the genuine threat to the applicant's human rights, or whether the applicant subjectively felt real fear or danger, but whether the judges, from their superimposed point of view, thought the fear justified. As one judge put it, the secretary of state, who makes the decisions on entry applications, was entitled to determine whether genuine "subjective fear was objectively justified". Thus, in the best Kantian tradition, judges substituted their own "objective" standards and decided that applicants whose fear they did not think was reasonable, ought not to be allowed political asylum. In some of the worst of these cases, refugees were sent back to regimes of torture and extermination.

Similarly, over the last Christmas period sharp criticism was levelled at the way the immigration authorities treated people visiting relatives and friends, by detaining them at Campsfield House in Oxfordshire, Pentonville ("an inappropriate place to hold immigration detainees" according to the chief inspector of prisons) and elsewhere. Some of the inmates were deported on fairly arbitrary grounds, while others are still effectively prisoners, though they have committed no crime other than try to visit people here, or escape from the terrors to which they were subjected because of their political or religious beliefs. But the unsympathetic attitude of the authorities is derived from the way the judges dealt with some of the cases where applicants had applied for refugee status.

A recognition both of the formal limits of equality before the law and of the singularity of the other cannot provide an "essence" of justice and indeed our argument would be that there can be no such thing. A call to respect otherness is not some soft, soppy notion that everyone needs to be accepted for what they are -- good or bad. But concern for the face of the other recognises that the law is not law until it is applied and that in its application the unique suffering face of the other must be acknowledged rather than made the indistinct case of a general rule.

Justice must try to combine the predictability and universality of formal rules, with the acknowledged unknowability of the other, implying the provisionality of those rules. Unless justice incorporates an absolute respect for the other, law's crisis will not be overcome.

Costas Douzinas is a senior lecturer in law at Birkbeck College. His and Ronnie Warrington's book, Justice Miscarried: Ethics, Aesthetics and the Law, was published by Harvester earlier this month. Ronnie Warrington died on September 28, 1994.

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