by Frederick Wilmot-Smith
Book Review by Master John Dyson
Master John Dyson was Master of the Rolls for four years until he retired in October 2016. He was a Supreme Court Justice from 2010-2012, a Lord Justice of Appeal 2001-2010 and a High Court Judge 1993-2001. Master Dyson was Treasurer of Middle Temple in 2017.
Nobody would seriously question the importance of having a just legal system in a democratic society. Just laws are a necessary condition of such a system, but they are not sufficient. It must also provide for individuals to be able to have their rights vindicated fairly in accordance with just laws. For centuries, philosophers have written about what constitutes a just law. But as Frederick Wilmot-Smith points out in this important book, the design of a fair legal system to apply just laws has been ignored by almost every moral, legal and political philosopher since Socrates, Plato and Aristotle. Nowhere has there been any sustained consideration of how the structure of a legal system might affect the justice of laws, or what a just system of administration of laws would be.
This is the gap which this book seeks to fill and it does so most impressively. In a mere 200 pages, it covers a great deal of ground. It is replete with the learning of other philosophers and rich in references to literature (from classical Greek authors to Shakespeare and many others). The almost 50 pages of endnotes are worthy of study in their own right. They mention the breath-taking amount of learning on which the author has drawn.
This a work of philosophy. Its basic thesis is that, if justice is to be provided at all, it must be provided equally for all, without regard to arbitrary factors such as race, gender, class or wealth. Much of the focus of the book is on the role of wealth: inequalities in who gets justice should not be a function of different financial circumstances. So a market in legal resources is a bad way of distributing them. It does not approximate to the ideal of equal justice, because it makes outcomes turn on antecedent wealth rather than the merits of the claim. This leads to the conclusion that a system that affords all would-be litigants a basic level of legal resources will not suffice. And yet this is all that our current system aspires to do.
Instead, what is required is a system which provides for an equal level of resources to the parties in an individual case. This can only be achieved by making it impermissible to contract out of the public provision of legal services and providing for a far more centralised control of the legal professions and individuals’ choices to engage lawyers than we currently have. The author also says that it means that it should not be possible to contract out of the public court system by having disputes resolved privately, for example, by arbitration. He recognises that these are controversial suggestions, but he does not flinch from meeting head on some of the principal objections to them.
There is much else to savour in the book to which it is impossible to do justice in a short review. It is scholarly and very thought-provoking. I cannot recommend it too highly to anyone who is interested in the fundamental question of what makes a legal system just.