The lawyer as a politician

The community is usually content to leave the settlement of disputes to the legal experts. What they do not realise is the profound effect dispute settlement has in creating new rules and institutions in our society.

When, for example, a judge decides that a migrant, with scant appreciation of our law, is bound by the strict terms of a hire-purchase contract, the judge legitimises a whole hire purchase industry and way of living on the never-never.

Lawyers see the whole system of deciding disputes by precedents as a framework which they can use to temper the idealism and slick logic of ivory tower social scientists with old-fashioned stability and common sense.

The trouble with that approach is that a lawyer's common sense is too often two generations behind that of the rest of the community. His approach mirrors his whole range of social attitudes, his laissez-faire premises and his own view of society just as much as that of politicians arguing on the two sides of an abortion or nationalised medicine debate. The only difference is that he does not have to answer to the electorate.

The very conservatism of the legal profession, the seriousness with which they still solemnly dissect a 1601 statute to answer major tax policy questions about charitable exemptions, they way they speak in language of hushed submissiveness to judges or wear wigs in battle, so ungainly in a world where people walk on the moon, is ample proof of the power of conservative values in the profession.

Unfortunately, that conservatism is not confined to the quaint ceremony. It is not confined to particular rules. It permeates their whole approach to the working law.