Fake Law: The Truth About Justice in an Age of Lies by The Secret Barrister is a brilliant example of good popular legal literature.
On top of that, many of the author’s opinions on legal matters have resonated with me. I list some of them below.
To Be
Why does the law exists?
[…] the function of the law […] is to grapple dispassionately with cases that appear before the courts. […] [The law] has to ensure that, when faced with the most difficult of cases, it reaches decisions that appeal to principle and reason, not just emotion.
Common Property
The law belongs to all of us.
Every day in a thousand ways we interact with and rely upon the law without it even occuring to us.
Common Tool
The law applies to all of us.
We rely on the law to protect us whether we are perceived as the hero or villain.
Face Value
No one is immune from the law.
For example, it is false to argue that the police will only arrest the guilty, only the guilty will be put on trial — and the alleged guilty will never be you.
The way you treat the law towards other people is the way you ultimately treat the law towards yourself.
If equality before the law can be disregarded for them, it can be disregarded for you.
(Not) Guilty
The Secret Barrister fairly points out that the ‘not guilty’ verdict means literally just that — not guilty.
Those two words embrace a wide spectrum of possibilities, from a jury being certain of innocence to their being a hair’s breadth away from sure of guilt.
Hot Topic
About human rights -
Tearing down the edifice of human rights, as we are urged is in our interests, simply because it occasionally results in a benefit to people we don’t like, is the politics of the kindergarten. To reinflate a health analogy […], we would not support the abolition of universal healthcare just because the NHS is sometimes used by murders, terrorists and paedophiles.
Kings and Queens
For informal definition, enjoy how the rule of law is compared to Jenga -
The rule of law is like a game of giant Jenga, You can pluck isolated cases out of the system once, maybe twice, with the structure remaining upright. But its foundations are weakened with every block removed. Ans you don’t want to be the one standing underneath it when it tumbles.
For formal definition, enjoy the extract from The Rule of Law by Tom Bingham -
[A]ll persons and authorities within the state, whether public or private should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts.
Devil’s Advocate
The Secret Barrister reminds that the lawyers exist to fight their clients’ cases. They represent (not judge).
And the answer to the question How can you defend someone you know is guilty? is -
[We, the lawyers,] cannot ever know defendant is guilty unless he tells ud. If he does tell us, we are them limited in what we can do to help. What we absolutely cannot and will not do is stand up in court and positively assert that he is innocent; to do so would be to mislead the court, which is among the gravest professional sins. However, if the client insists he is innocent, notwithstanding that the evidence against him may be overwhelming, it is not our job to judge, but to represent his case as persuasively as we can.
Rise Shield
Legal aid is our shield (not bane).
The language that legal aid is for the sole benifit of undeserving individuals is misleading to the point of rank dishonesty.
Legal aid is not a private benefit, nor a public subsidy for a private transaction between a loathed stranger and the state; it is not a luxury to be conferred only on the morally pure; it is the key — the price of which is shared among us — to guaranteeing access to justice for all of us, whatever we’ve done and however unpopular we may have made ourselves, and to keeping the heart of our democracy beating.
No Way
About dangers of assaulting access to justice -
The devastation lies not merely in the individual lives ruined, nor the people cut adrift from their own courts, but in the denigration of our whole justice system. The cases never pursued; the judgements never written; the claims lost, which might have been won if only for the availability of a qualified lawyer to make the arguments; the precedents never set; the unjust laws and policies never challenged. […] Our society is both reflected and landscaped by what takes place in our courtrooms.
Priority Pass
Legal education should be as central as language and maths.
[…] law, justice and rights should be infused throughout the curriculum as they are every day life, from primary school through to secondary and beyond.
Fair Play
Judicial independence is the cornerstone of our society and worths respect. It should be protected from brute force — like “name and shame” campaigns.
If we lose judicial independence, we lose the rule of law. The day a judge makes a binding decision affecting the rights and liberties of one of us, not on the legal and factual merits, but with a nervous glance fo the press and public galleries, or with a beady eye on political favour or punishment, is the day that the decay in our democracy turns terminal.
To reach decisions to accord with the approval of the public, is to utterly mistake the function fo the judiciary. As the jurist A.V. Dicey said -
The judges know nothing about any will of the people except in so far as that will is expressed by an Act of Parliament, and would never suffer the validity of a statute to be questioned on the ground of its having been passed or being kept alive in opposition to the wishes of the electors.
Go Wrong
Bad laws or lack of their understanding — what is a problem?
Is the real problem the culture that the law and its presentation fuels, rather than its strict text?
In Danger
The Secret Barrister argues that to the extent that the law has an impact on individual behavior, it is our understanding that matters.
The very real danger […] is that, when we do not understand how the law works and what it in fact permits, much less the rationale behind it, we can find our misunderstanding leading us astray.
Magic Pill
The remedy against misunderstanding of law and exploiting legal knowledge gaps lies, The Secret Barrister asserts, in public legal education.
Our rights can only be removed and false narratives pumped throughout our culture as long as we lack the tools to identify what is happening.
Disclaimer: This is my personal blog. This is neither a legal opinion nor a piece of legal advice. The opinions I express in this blog are mine, and do not reflect opinions of any third party, including employers. My blog is not an investment advice. I do not intend to malign or discriminate anyone. I reserve the right to rethink and amend the blog at any time, for any or no reason, without notice.
