Opinion: Rebalancing the scales — economics and justice in legal systems
Benjamin Bestgen and Alexander Jeuk discuss the practicalities of rebalancing the scales of justice making the legal system accessible to everyone.
The complaint that the law tends to favour the wealthy and powerful while being much less available to the impecunious is not new. And there is much evidence to support it.
Regardless of whether one holds conservative, classic liberal or social-democratic/socialist views on socio-economic questions, we can usually agree that the law is meant to be a leveller, a tool of advanced civilisation that balances out the natural advantages the rich and strong otherwise wield over their fellow humans. A fair and just legal system should help people to avoid both being subservient to the interests of the mighty as well as a chaotic “law of the jungle” mentality in a “dog eats dog” social order.
Utopian writers like Thomas More, Plato, Edward Bellamy or William Morris considered fictional societies and legal systems. We want to look instead at some feasible solutions to this problem.
Equality of arms
The philosophical problem is obvious: if we want our legal system to be just, we cannot ignore inequalities which corrode the system and risk that systemic injustice becomes the norm.
Nobody should have to live in a mouldy, crumbling apartment because they cannot afford to sue their landlord or plead guilty to a crime they haven’t committed because going to trial would cost too much. And the fact that wealthy parties can afford top-tier legal representation and wage “lawfare” against their opponents while poorer people may not be able to get a lawyer at all likewise offends the idea of a just legal system.
Philosophically at least, justice and the law are not merely commodities – they are a common good that requires strict equality. While it is more difficult to debate whether wealth or income should be equal, the very idea of justice and legal rights requires by necessity that everybody is equal in the eyes of the law and enjoys equal opportunity to avail themselves of it. Justice will treat beggars and princes equally fair and prohibit that the law affords either party better legal options than the other.
The economics of inequality
A legal system doesn’t exist in a vacuum – it needs to be looked at within the social, political, and economic context in which it is embedded. In Ireland, the UK and many other countries, it is accepted – or perhaps just uncritically presupposed? – that legal services are at least partially a commodity and for sale in the open market. Lawyers in private practice can usually choose their clients and set their own fees.
While there is a professional requirement that legal fees must be “reasonable”, there is no regulation actually determining what lawyers may charge, unless the lawyers work for the government or conduct publicly funded legal aid work (which is restricted in scope and poorly remunerated). This enables a two-tiered access to justice: those who can pay can utilise the legal system to their heart’s content while those of limited means or the outright poor cannot.
Since Regan and Thatcher tilted Anglo-American society from the post-war Keynesian reconstruction towards a neoliberal socio-economic approach, the majority of British politicians seem to either encourage or at least accept this state of affairs. This is despite the evident disadvantages it imposes on the poor, the lower-income working class, and increasingly also the traditionally “safe” middle and upper middle working classes – teachers, junior doctors, academics, lawyers, journalists, small business owners and the like. Indeed, looking at the income and wealth distribution since the 1980s, an ever-increasing number of people live from paycheck to paycheck, cannot afford to own property, and, among other things, cannot afford legal services.
What could be done?
Across the political spectrum, there are various options to rebalance the scales and make the justice system more accessible for everybody, ranging from classic conservative and liberal approaches to socialist and social-democratic conceptions. Without recommending any in particular, one could deliberate on the following:
Improve what we have and do better: that means to resource the system properly and regulate it fairly. The justice system, like the UK’s NHS, requires significant funding, wise regulation, competent political attention and constant care. But as a bedrock of a healthy commonwealth, it deserves to be a top funding priority. Any government that is serious about the rule of law and justice cannot afford even the perception that the legal system works mainly just for wealthy people and leaves all others behind.
One can also imagine subsidies to trial proceedings or universal, mandatory law insurance, comparable to governmental health care, such as provided by the NHS.
Nationalise legal services completely: Parliament could eliminate private practice altogether. Police, prosecutors, and judges are already public servants, so why not lawyers? All lawyers’ fees need to be fair and reasonable tariffs set by statute and lawyers must be available for anyone who needs legal services. Costs are either fully borne by the public purse or contributions made by system users on a means-tested basis, with more affluent parties paying their own costs.
One could further eliminate choice of counsel to avoid particular lawyers being constantly booked out by certain clients. Like judges or prosecutors, lawyers could be forbidden to accept gifts or favours outside the statutory remuneration. All lawyers get access to the same databases, admin support and case management tools to ensure they are equally well equipped to fulfil their role as law officers.
Obligatory legal aid: all private practice lawyers could be obligated to undertake legal aid work for reasonable fees paid for by the public purse or through partial, means-tested contributions from the clients. The larger or richer the law firm, the more legal aid work it must do or pay other firms to undertake it on its behalf.
The biggest or richest firms might even have to operate entire legal aid and pro bono divisions within their own firm structure. The lawyers undertaking this work must be paid a fair and reasonable salary too, have access to all relevant resources of the firm, not be restricted in their career progress, and receive quality attention and time from management.
Open up a third sector for legal work: consider private practice, the public sector and “common good sector”. The “common good” sector is, akin to an Ombudsman service, independent and funded by means-tested contributions from users, a percentage taken from private practice firms, and a percentage from the public coffers.
Top-tier legal databases, admin support, and case management tools are made available to them by statute. Lawyers working in this field may receive preferential tax treatment, better mortgage rates, assistance with school fees, and defined benefits pensions to recognise their service to the commonwealth and to compensate for lower overall earnings and relative lack of rising through career hierarchies when compared to private practice or public sector colleagues.
People’s Law: in many areas of daily life, there is significant room for the law to leave the sphere of the legal profession altogether. Many laws and legal processes are incredibly complicated, poorly phrased and confusing. Simplification of certain areas of law and legal processes would mean that people could conduct their legal affairs themselves with greater confidence and experience a higher degree of connection and agency with regard to the law. This idea is not overly radical: courts already see increasing numbers of “litigants in person”, i.e. laypeople representing themselves, as instructing lawyers is often too expensive. Simplifying the law and procedure would reduce costs and the inevitable frustrations and wasted time inherent in the present process. Also, magistrates in England & Wales are legally untrained volunteer judges – arguably their job would also become easier if the laws and processes were simpler.
Intuitions about common goods
Economic decisions are ultimately political decisions – the ethics and social philosophy of politicians shine through their economic thinking. If a legal or healthcare system is unfair or conceptualised as a privilege rather than a right, the underlying cause tends to be political will (or lack thereof).
It is interesting to note that the majority of British people are proud of the NHS and believe that access to quality health care should be for everybody, irrespective of social standing or financial means. That politicians have, for ideological reasons, gutted and starved the NHS for years and people are increasingly forced to “go private” to still receive decent healthcare is viewed with anger and despair by millions: receiving proper medical attention or having good teeth is suddenly again the privilege of the better-off.
However, access to justice is somehow not met with the same protective cultural intuitions the NHS benefits from, making it easier for politicians to undermine it and receive less pushback from the electorate. Therefore, it is important to point out that in principle there is no difference between the common good status of healthcare institutions and legal institutions.
For arbitrary reasons, it was decided to treat the legal sphere like a commodity, but we can decide at any time to treat it as a right, like healthcare or public schooling. Since our entire cultural and philosophical conception of the law rests on the idea that it applies equally to all and regulates all public life, it seems only consequential to go the latter route.
Benjamin Bestgen is a solicitor and notary public (qualified in Scotland). He holds a Master of Arts degree in philosophy and tutored in practical philosophy and jurisprudence at the Goethe Universität Frankfurt am Main and the University of Edinburgh. He is the author of “Practical Jurisprudence – Attempts to make legal philosophy interesting” (2022).
Alexander Jeuk is an independent researcher, author and journalist. He researches topics in philosophy, economics, politics and the sociology of science/academia. He has a blog column (“Alexanderplatz”) with the countrywide distributed German newspaper “die tageszeitung (taz)”, writes occasionally on his Substack Unalienated and can be found on Twitter. He holds a PhD in philosophy from the University of Cincinnati and a Magister Artium in philosophy, sociology and psychology from the Goethe Universität Frankfurt am Main.