Counterpoint by Mark Nicol – The law unto itself

| January 26, 2021

As an irreverent iconoclast one holds, yet, a vital respect for the cultural institutions organizing and directing discrete volitional functions of the human corporation. We may define some of our core institutions as political, economic, educational, and legal. The reasoning behind the constant indictments cast at orthodox institutionalized thinking, action, emanating from this demure critic is this:

The human corporation, as per any business operation, yields a bottom line dividend, either in the black, or in the red. In my estimation the human corporation is operating seriously in the red in most critical categories of moral dividend.

Consequently, I perceive an imperative vocation in deconstructing the institutionalized thinking, action yielding this net result, thereafter aiming to construct the vision of a new volitional culture, conceived in new institutions. Let me define this as the quantum jump from Modern-mode cultural operations to the adoption of a Futurist-mode cultural contract.

Upon what criteria might we assess the product of human volitional enterprise?

There are four basic spheres of moral expression, within which human volitional productivity may be measured – selfish, humanitarian, ecological, aspirational.

Self-interested expression, seeking to garner material product to itself, assert its sovereign moral stamp upon the world, is not, of itself, evil and destructive. But we recognize that depredation comes complicit with most egoistic actions, especially ones that myopically, uncaringly, or viciously impose upon other living beings, ignoring their moral interests. Thus, one person’s joy is often another’s pain. Classically, there is a direct contract of dominant/passive depredation, usage.

Which rather brings us to the matter of the law, the specific subject of this tidy tirade.

I comprehend that the intrinsic faults, moral, structural, written into cultural institutions go unnoticed by most citizens. I put this down not so much to unquestioning obeisance as to a more powerful, subliminal factor – conservation of the operational status quo. If it ain’t broke, why fix it.

But then there are the frustrated idealists, constantly complaining about the moral product of institutional culture, yet never daring to analyze the intrinsic functionality of accepted cultural institutions. The holy shroud that cloaks democracy springs to mind. If the citizenry genuflects to a a dysfunctional institution, and then whinges about the consistent product?

The one case where moral decrepitude is writ patently into the structuring of a major modern institution has me baffled. Why does no-one ever question the design of a private enterprise legal system, when the inevitable product will be cynical perversion in the course of justice?

Although in Western civilization we enjoy the unique benefits of a modernist Common Law system, freed from the autocratic tyranny imposed in all ancient legal regimens, ascendant abuse is still scripted in our legal framework. I’m not talking about the dominating status of the judiciary here. For pragmatic reasons, someone must ultimately be deemed qualified to judge, preside in moral ascendancy.

The glaring problem in our Western legal system resides with the professional positioning of our lawyers. How is it conceivable that we allow agents arguing for moral justice to take pecuniary interest in arguing for or against a plaintiff, defendant?

We’re lucky we haven’t ended up with a ‘show me the money and I’ll show you the verdict’ system. The cultivated impartiality of the judiciary, here, is on the side of truth and moral decency. So is the core integrity of most if not all of our lawyers.

In US legal culture, heavily influenced by Capitalist ethics, the ability to buy verdicts is more visible. But US society also has a moral antidote, composed in a militant humanitarian culture pressuring legal, political actions. In Australia we evidence the bought legal system phenomenon, where organized crime and their habitual defendants work assiduously to procure not guilty outcomes, often via whatever means necessary. Technically correct decisions, here, often do not correlate with morally decent outcomes, and our society is lumbered with a considerable quantum of habitual, uncensored crime as result.

Offsetting this travesty, the reprehensible actions of those involved, is the laudable pro bono work performed by many lawyers, whose economic bottom line and professional statuses suffer. These are the souls worthy of our highest respect.

Nonetheless, perhaps my summary, net assessment is fair:

Lawyers don’t make money out of honest people.

There exists a more insidious downside to the institutionalization of a for profit legal system. This detriment exists in that conscientious legalist culture, which aims to expand or even create its own industrial opportunities, which aims to cynically culture social morality servicing this profitable end.

Which came first, the desire for better or changed outcomes in Family Law, or the desire to extract vast legal fees from all suffering, contesting parties? Which came first, the desire to repatriate indigenous peoples land rights, or the desire to massively profit from the moral barter?

Certainly, over the past few decades, Family Law and the Mabo indigenous land rights case have figured as massive money spinners for the legal profession, and for the judiciary too. After all, if there are no legal cases to contest, judges are out of a job too. Then there is the case that the judiciary, in our high courts, are wont to think themselves the bastions of civic morality, which is questionable.

We have examined reasons for the parlous emaciation of executive authority in the Western political system. But we appoint politicians, not judges, to determine the moral prerogatives of our society. It seems that, with the political executive all but neutered, we have high court judges surreptitiously grasping some of the reins, using new legislative interpretation as pretext.

In the Mabo context, the judiciary decided to ideologically align itself with one populist viewpoint over another. Thus, rational moral judgements are ceded to dominant vogue ideologies. On Day 1 our law reflects a Supremacist position, and any former indigenous claim on Australian lands is considered void. On Day 2 our law reflects an Egalitarianist position, and the former claim on Australian lands is considered valid. Thus go the pillar to post positions of a culture, struggling towards moral maturity, rationality – cruel one day, pathetic the next.

Pity the front line executors of law enforcement, our constabulary who have to deal with the nasty end effects of a limp-wristed and partially corrupt legal system. The police are the ones who, day in, day out, have to deal with the druggies, the organized crims and petty ones not put away, not properly dealt with by our courts. We can lay a large proportion of the blame upon social liberalists, who, of course, never live next door to Joe Thug. Next are those who represent Joe Thug, who have cultivated a mutually serviceable camaraderie, but who would never live next door either. But the ultimate question is this. Is return business, for the entire legal system, a factor influencing lenient sentencing or non-sentencing? ( Back to my sceptical, summary assessment of the capitalist legal system).

One can suggest radical courses of action, to remedy these prodigious, predictable faults in our legal system. But we should be mindful, first, that in modern Western society we do enjoy a generally robust and fair institution of jurisprudence, something unique and very hard won.

That said, the current scope of legalist enterprise devoted to ambulance chasing, litigation against professional irresponsibility has, for those who have to pay out and/or insure against litigation, become economically debilitating. GPs can’t run the risk of operating a private practice these days, because one mammoth law suit could wipe them out. Teachers, nurses waste exorbitant numbers of hours, covering their legal butts by filling out accounts of what work they did do, just in case. Yet, when a serious pedophile is uncovered preying on pupils, does the law summarily line culprit up against a wall? No. That would be too harsh, bad for return business.

Limpid social moralists and insidious legal practice also align in sustaining our vegetable population, those on terminal yet interminable life-support, at enormous cost to human decency and our purse.

In the 1972 school holidays I worked in a plastics factory operating dangerous circular saws, refused to go faster when pushed by the owner, a basically nice guy. A few days later everyone rushed to the guillotine where his wife was working. I knew, but concentrated on my work. Face drained of blood, I still remember that poor guy rushing past me, a clenched fist containing his wife’s fingers.

Yes, I’ve had other dramatic workplace experiences, had a very serious accident myself. But there is also such thing as vexatious, opportunistic litigation, running rife and ruinous in our culture today. It is time to de-incentivize the industry, abolish the private enterprise legal system. Lawyers, judges, should every 3 years serve one month periods working alongside the police, and serve one week inside special penal cells. Familiarity doesn’t always breed contempt.

P.S. Last night we had to board with friends, courtesy of another maledictive agent currently rendered patronization by our limp-wrist legal system – the arsonist.

Roughly 50 square kilometres of the Adelaide Hills, some beautiful bush and wildlife terrain plus brick and mortar, is placed under devastating attack. And the apprehended agent who, likely single-handed, wrought this devastation will receive a slap on the wrist sentence, not be placed upon a proper pyre for the public benefit and entertainment.

Lawyers do not institute our laws. But most insidiously side with the pathetic and perverse humanitarian culture, the MPs promoted by and as such, who line the silk.

 

SHARE WITH: