Introduction

Today, our society divides into two groups; the majority, who have no experience of the law, and a growing minority who have been singed by it. Within the second group is a smaller group, who have been to law more than once. Only those know that the law does not occasionally go wrong. It always goes wrong; very wrong indeed. However, for them it is too late. They are so severely damaged that they do not want to talk about it, write about it, or think about it.

The seeds of the present collapse of the legal industry were sown many years ago. Two streams of thought flowed into the current torrent which washed away the fabric of law in England. Such an entrenched fabric took time to disintegrate in the face of energetic attack, sustained over decades.

The two causes of the present illegal quagmire are; Denning and Exploitation. The latter; the imperative to maximise costs, reached its apotheosis under the ideology of Thatcher in the 1980's. The Denning thrust began decades earlier, in 1947. Together making a vicious brew, they corroded the fabric of law. Today, no law remains.

On its own, neither Denning nor Exploitation could have destroyed an entrenched legal fabric. It was their mixing into a critical mass which caused the destruction.

Whereas Dworkin "argues forcibly .... that the fundamental purpose of law is not to report consensus or provide efficient means to social goals but to answer the requirement that a political community act in a coherent manner towards all its members", the victorious Denning faction use or misuse the law to deliver mercy, not justice.

"Dworkin argues that there is always one single right answer embedded in the principles which underlie the law". Professor John Griffith, in his 1977 book, "The Politics of the Judiciary", discusses the retreat from law enforcement, first started by Lord Denning's need to replace the law by "equity", which has now led to a flippant and quixotic legal fabric, of no value to anyone, bringing security to no-one. It retains little comprehension of its victims. Since it serves no vested interest whatsoever, it will not last much longer.

 

 

Portia's Speech

Portia's Speech is an ideal metaphor for the gathering crisis in English law. It is so important that it is here printed in full.

 

 

The quality of mercy is not strain'd;

It droppeth as the gentle rain of heaven

Upon the place beneath. It is twice blest:

It blesseth him that gives and him that takes.

'Tis mightiest in the mightiest; it becomes

The throned monarch better than his crown;

His sceptre shows the force of temporal power,

The attribute to awe and majesty,

Wherein doth sit the dread and fear of kings;

But mercy is above this sceptred sway,

It is enthroned in the heart of kings,

It is an attribute of God himself;

And earthly power doth then show likest God's

When mercy seasons justice. Therefore, Jew,

Though justice be thy plea, consider this -

That in the course of justice none of us

Should see salvation; we do pray for mercy,

And that same prayer doth teach us all to render

The deeds of mercy.

However, note that our use of words is different from Shakespeare's. Denning, being a Portia man, seeks to impose Mercy, which we call Justice. Ranged against him are beleaguered men who want the rule of Law, which Portia calls Justice. Mercy becomes today's Justice, and Justice becomes today's Law. In our terms, Portia's Speech becomes;

 

 

 

 

 

 

 

Portia's Revised Speech

The quality of justice is not strain'd;

It droppeth as the gentle rain of heaven

Upon the place beneath. It is twice blest:

It blesseth him that gives and him that takes.

'Tis mightiest in the mightiest; it becomes

The throned monarch better than his crown;

His sceptre shows the force of temporal law,

The attribute to awe and majesty,

Wherein doth sit the dread and fear of kings;

But justice is above this sceptred sway,

It is enthroned in the heart of kings,

It is an attribute of God himself;

And earthly power doth then show likest God's

When justice seasons law. Therefore, Jew,

Though law be thy plea, consider this -

That in the course of law none of us

Should see salvation; we do pray for justice,

And that same prayer doth teach us all to render

The deeds of justice.

Definitions

During my Long March through the Valley of our legal theory and practice, I was led to a dual classification, between the lawyers and the romantics.

Definitions in the Shorter Oxford Dictionary are useful in this discussion.

Law. The body of rules, whether formally enacted or customary, which a state or community recognises as binding on its members or subjects.

Justice. The quality of being (morally) just or righteous; the principle of just dealing; just conduct; integrity, rectitude. (One of the four cardinal virtues.)

One shrinking group of lawyers wanted the rule of law. However, the romantics, led by Denning, wanted justice. After some uncertainty, including some flirting with the concept of justice, I came down heavily in favour of the rule of law. This mental journey would occur in most people. They come to realise that predictability, not justice, is the most important factor for them and their lives.

Lords Simonds, Jowitt, and Hailsham and the rest stood for Law while Denning stood for Justice. Denning won.

Heward says that personal relations between Simonds and Denning were cool. Denning thought that Simonds was too dogmatic and emphatic. He felt that Simonds looked down on him because of his social origins, although Simonds himself came from a family of brewers.

We will analyse the slide of the legal system from law into justice. Under this scenario, the earlier period, when the law ruled, looks like the halcyon period before the Fall. Later, we will find a flaw in this story. Did we ever have a law which could rule? But first, let us enter into the universe of discourse which occupied leading lawyers during the middle of this century; the battle between Law and Justice.

 

Equity Denning

Denning's ambition was to enforce righteousness, or justice, not the law. Perhaps his strong feeling for justice caused him to neglect his study of jurisprudence, the philosophy of law, which he disliked, and in which he did badly as a student. Or perhaps it was the other way round. He called himself a Portia man. His failure to foresee the disastrous long term effect of his sustained assault on the law is mirrored by the assertion that he did not read far enough beyond the initially seductive speech by Portia in The Merchant of Venice, where the early softening of the harshness of the law drifts into the general collapse of law and the indulgence of prejudice. Using numerous rationalisations, Prejudice is what masquerades as Law today, after forty years of tireless effort by Denning and his many appointees to drive us along the very path outlined by Shakespeare in the scenes following Portia's speech.

Judge Denning operated at a number of levels, in much the same way as Dorothy and her companions in the Wizard of Oz got into scrapes of varying difficulty. When pursuing his objective, of deciding in favour of righteousness, Denning would keep within the law if possible, using a judge's discretion. If this failed, he would resort to tortuous interpretation, standing the established law on its head if necessary. If this failed, he would defy the law. If even this failed, he would kick the case into Equity. Unlike most judges, who avoided situations where their judgements might be overturned on appeal, Denning seemed to care less about his future career as a judge. He willingly risked reversal and even censure by a higher court. Following the analogy of the Wizard of Oz, the retreat by Denning into Equity is equivalent to the flash of light followed by the appearance of the Good Witch of the East. Rest assured that if you enter into litigation in order to secure your legal rights, you will be taken down the yellow brick road as far as is necessary in order to find a fork in the road, between Law and Righteousness. The judge, using his unlimited discretion and his unlimited prejudice, will then proceed down the Righteousness path, and withhold your legal rights.

 

Equity

Let us discuss Equity, Denning's Last Resort when evading the law.

Equity. 4. In England, Ireland, and U.S., a system of law existing side by side with the common and statute law (together called 'law' in a narrower sense), and superseding these, when they conflict with it 1591. - The Shorter Oxford English Dictionary 1984.

Denning replaced the law with his version of righteousness; a countryside, strict Anglican Church morality. For a time, this may have functioned reasonably well, until lesser judges found they were losing control of their cases, for two reasons. Firstly, as Lord Chief Justice Taylor said recently, "The Law responds to public opinion;" - a disgraceful remark. His remark had some truth, since, having betrayed the law, judges now had no solid ground for justifying their decisions. This led to a situation where whoever controlled the media could enforce their own version of righteousness through the courts, in defiance of the law, which had been generally overruled and replaced by Equity, or Righteousness. But whose righteousness? Judges could not enforce their own archaic morality against the onslaught of radical feminists and others, shrilly controlling the media.

As judges, now all at sea, bowed to the media and other groups, they faced a new problem. Those demanding that the law be enforced, and being denied by judges, began to ask for Equity, Equity being supposedly the process whereby manifest injustice could be rectified. The courts, awash with manifestly illegal judgements, which is in fact what Denning wanted, now peddled Righteousness. Victims began to plead for Equity, and their pleas were hard to deny.

The solution came by resorting to one of the central features of Equity; "He who comes into Equity must come with clean hands." The idea behind this is that when two crooks fall out, either or both deserve manifest injustice, and the courts should not be bothered with such matters. This is why all litigants are dirtied by the court, so as to cut them off from resort to Equity. Judges routinely make unfounded, deeply damaging charges against litigants, for instance of perjury, so as to reassert control of a case, to cover for the manifest injustice which they may later mete out. Judges also find charges of bribery and forgery useful, so long as they are not investigated, but hang over the case like a pall, further widening their discretion.

Generally, your own solicitor and barrister, and later the judge, will also ignore, or rule out of order, extreme, watertight evidence which makes a case a foregone conclusion. This is for two reasons; firstly, to ensure that the distinction between law and righteousness be muddied, and secondly, so that the judge retains control of the case. If the conclusion of the case becomes transparently obvious, the judge loses control, and secondly, costs are not maximised. It is the maximisation of costs which is the overriding objective of solicitors, barristers and judges. Judges are largely part-time barristers anyway, or were previously practising barristers. All are Masons, or at any rate O.K. Chaps, which the non-lawyer litigants before them (you) are not.

Continued