At the end of a JD, you will be a lawyer. To qualify as a lawyer you need to complete certain subjects (known here in Victoria as the “priestly eleven”).

However, from the sound of it, this woman will not actually qualify as a lawyer. It’s definitely possible to do a Masters in Law without being a lawyer. Generally, you’d specialise in a particular area in which you already had experience (eg, a building practitioner would do construction law). This woman would end up as an academic in jurisprudence and economics, not a qualified lawyer.

Is there any way of becoming a law/economics/libertarian jurisprudence scholar without having to start at the LLB level? I met someone over the weekend who said she is going to commence an LLM next year, yet she has only an undergrad BA (Hons) in economics and philosophy. She also has three or four of the first year Law subjects, but all this was done ten years ago. Is this possible?

I should perhaps first note that my interest in the West’s two legal systems derives from the unusual experience of observing at first hand how they dealt with the same organised criminal.

In 1988, the continental investigative system heard evidence showing beyond the slightest doubt that the Police Commissioner of Queensland, Sir (as he then was) Terence Lewis, franchised organised crime and extorted bribes from the franchisees.

But at Sir Terence’s trial in 1991, the British adversary system obliged the judge to conceal so much devastating evidence from the jurors that he had to tell them there was no reliable evidence (left), and that it would be “dangerous” to convict him.

As it happened, the jury did convict Sir Terence, but it took them five days and must have been touch and go; their verdict apparently turned on every defence lawyer’s nightmare: the one question too many that gives jurors a glimpse of the truth.

Research into the systems since then has resulted in three books, Trial by Voodoo (Random House 1994), The Cartel (Herwick 1998), and Serial Liars (Lulu 2005), and 85 columns in the legal magazine, Justinian.

I have to say: that the further you go into the history and practice of the adversary system, the worse it looks.

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My piece in the August issue of the Centre for Policy Development’s InSight noted:

• Organised criminals ran Britain’s public sector when the common law began in the 12th century. Lawyers and judges soon formed a cartel to protect their interests, mainly the cash flow.

• In the 13th century, the cartel refused to adopt Europe’s new investigative system, and so rejected truth as the basis of justice. .

• By the start of the 19th century, judges had allowed people historically economical with the truth, i.e. trial lawyers, to acquire control of the evidence, and hence of the process, and hence of the money. This is the adversary system.

• The adversary system persists partly because academics, who joined the cartel in the 18th century, teach only what the law is. Lawyers, judges, politicians, commentators, and the public thus know little or nothing about what justice really means, where the law came from, what is wrong with it, or the remedy.

• The remedy is to dismantle the cartel by training judges separately from lawyers, as they do in Europe; to give judges back control of the process; and to have them search for the truth in an improved version of the investigative system.

The remedy is not impossible; the investigative system is already used – with varying degrees of success – at inquests, Royal Commissions, and standing commissions on corruption.

The InSight people sensibly restrict contributors to 1000 words. Ms L. Eagle, Ms S. Lawyer and other bloggers on the SkepticLawyer site were thus concerned that some of the data was unsourced. More detail is provided here.

Origin of the common law in a culture of organised crime

Organised crime is systematic criminal activity for money or power. History professor John Gillingham noted in The Oxford History of Britain vol II The Middle Ages (OUP1992) that William II (d 1100) began a practice that lasted for at least two centuries: he put every public office, from Chancellor down, on sale, and buyers in turn extorted bribes from people who had to deal with the office.

Organised crime was thus institutionalised in the trade of authority when the common law began in the reign (1154-89) of Henry II.

The cartel.

Cambridge law professor Sir (as he now is) John Baker (b.1944) says in An Introduction to English Legal History (Butterworths, third edition 1990) that judges were paid by 1200, and that: “England possessed from an early date a bench and bar united by their membership of a common profession”.

Chief Judge Richard Posner, head of the US federal appeals court based in Chicago, is also an economist. In Overcoming Law (Harvard 1995), he wrote: “The legal profession in its traditional form is a cartel of providers of services related to society’s laws … The history of the legal profession is to a great extent, and despite noisy and incessant protestation and apologetics, the history of all branches of the profession, including the professoriat and the judiciary, to secure a lustrous place in the financial and social-status sun.”

Chief Judge Dennis Jacobs is head of the federal appeals court based in New York. In The Secret Life of Judges, a lecture he gave at Fordham University in November 2006, he said judges have “an insidious bias because it is hard to make out in the vast maze of judicial work … woven together like an elaborate oriental rug in which the underlying image of the dragon emerges only after you stare for a while. I discern in this jumble a bias in favour of the bar lawyers: what they do; how they do it; and how they prosper in goods and influence. This is the figure in the carpet.”

In what may be termed the Barton Hypothesis. Associate Professor (law) Benjamin Barton, of the University of Tennessee, wrote in Do Judges Systematically Favor the Interests of the Legal Profession? (Alabama Law Review, December 2007):

“Here is my lawyer-judge hypothesis in a nutshell: many legal outcomes can be explained, and future cases predicted, by asking a very simple question: is there a plausible legal result in this case that will significantly affect the interests of the legal profession (positively or negatively)? If so, the case will be decided in the way that offers the best result for the legal profession.”

The notion that judges, consciously or subconsciously, tend to decide in favour of lawyers gets some support from the fact that they allowed lawyers to take control of the process and the money.

Justice

Former Justice Russell Fox said in Justice in the 21st Century (Routlege-Cavendish 2000) that justice means fairness, fairness to all means truth, truth means reality, and the search for truth gives a system its moral centre.
Since the cartel rejected truth as the basis of justice in 1219, Justice Fox’s definition posed a number of problems for academics who joined the cartel in the 18th century, and for their successors.
Some academics simply ignore questions of truth and morality; some implausibly say the system does search for the truth, and some say morality doesn’t matter either. That last desperate line was taken in the 19th century by London University’s John Austin and Harvard’s Christopher Columbus Langdell, and in the 20th by Oxford’s H.L.A. Hart.
However, everyone, including common lawyers, agrees that justice means fairness. The argument for change from the adversary system to an investigative system thus turns on which system is more fair.

Fairness to the innocent

Adversary system. The first common law academic, William Blackstone, said: “Under our system of justice, it is better that 10 guilty men go free than that one innocent man be convicted.”

Sadly, the reality is that in 100 serious cases at least one innocent man is convicted while at least 50 guilty men go free.

Mike Mansfield QC said in 1993 that British probation officers “maintain that on the basis of studies carried out by them, the number of people wrongly convicted could total 500 or more”. He said: “No one will ever know the true picture and in reality the total is almost certainly higher”. At the time, Britain had a prison population of 50,000. A conservative estimate of those wrongly in prison would thus be 1%.

The US percentage may be higher. The Chicago Tribune’s Ken Armstrong and Steve Mills reported in 1999 that 12 of 285 (4.2%) or prisoners on the Illinois Death Row since 1977 were found to have been wrongly convicted, and that throughout the US at least 381 homicide convictions had been ‘thrown out because prosecutors concealed evidence suggesting innocence or knowingly used false evidence’.

Investigative system. As boredacademic noted on the SkepticLawyer website, weak cases are more likely to be filtered out before trial.

A Report on the Administration of Criminal Justice in the Pre-Trial Phase in France and Germany, by Professor Leonard Leigh and Lucia Zedner (HM Stationery Office, 1992) said miscarriages such as that suffered by the Birmingham Six were unlikely to occur in France or Germany.

One reason is that the investigating judge’s dossier on the case is available at all times to the lawyer for the accused.

US law professor Gordon van Kessel said in Adversary Excesses in the American Criminal Trial (Notre Dame Law Review, 1992): “It is arguable that the non-adversary system shows greater respect for the accused …”

Fairness to victims and the community

Adversary system. Alan Dershowitz, Harvard law professor and criminal defence lawyer, said in The Best Defense (Vintage, 1982) that the first two rules of what he called “the justice game” are:

Rule I: Almost all criminal defendants are, in fact, guilty.
Rule II: All criminal defense lawyers, prosecutors and judges understand and believe Rule I.

I asked Brett Dawson, a former defence lawyer and prosecutor, what “almost all” means. He said it means 99%.

Estimates of conviction rates vary, but it is clear that in serious cases at least half the guilty escape justice. In 1989, law professor Michael Zander said that since 1979 approximately 50% of all British accused were acquitted.

The NSW Independent Commission Against Corruption (ICAC) uses the investigative system. From 1989 to 1995, ICAC recommended that 208 persons be charged with corruption. At their adversary trials, 63, or 30.3%, were found guilty.

In 1997, Dr Lucy Sullivan, of the Sydney Centre for Independent Studies, noted 1993 figures showing that NSW conviction rates were 26.5% for murder and 11.5% for rape.

Investigative system. Justice (Federal Court) James Burchett said in 1996: “My reading suggests that even those comparative lawyers who are critical of the French criminal law do accept that French courts are fair, and that the verdict reached is generally accurate.”

Bron McKillop, of the law school at Sydney University, is an authority on the investigative system and author of Anatomy of a French Murder Case (Hawkins, 1997). He says the French and German systems convict 95% of accused.

Why the difference?

First, in Guilty: The Collapse of Criminal Justice (Random House 1996), Judge Harold Rothwax, of New York, noted: “Our system is a carefully crafted maze, constructed of elaborate and impenetrable barriers to the truth.”

The barriers are at least 20 mechanisms for obscuring or concealing the truth, including six rules for concealing relevant evidence. The rule against self-incrimination, which derives from a lie by the first common law academic, alone lets 25% of criminals escape justice. A majority of the mechanisms came into being after trial lawyers got control of the criminal process 200 years ago.

The investigative system has no anti-truth mechanisms.

Second, trial lawyers control the adversary process. In Overcoming Law (Harvard 1995), Chef Judge Richard Posner, head of the federal appeals court based in Chicago, described “adversarial procedure” as “contests of liars”.

In the investigative system, judges trained separately from lawyers control the process and search for the truth. . .

Adversary system losing support

Criminal law. Despite academic silence on the adversary system’s lack of justice, requests for change are increasing.

In April 2003, the Malimath committee recommended that India change the criminal system to an investigative system.

The commitee was chaired by Judge V.S. Malimath, former Chief Justice of the Karnataka and Kerala High Court, and included D.V. Subba Rao, Chairman of the Bar Council of India, N.R. Madhava Menon, Vice-Chancellor of the West Bengal National University of Juridical Sciences, Amitabh Gupta, former Director-General of Police, Rajasthan, and Durgadas Gupta, Joint Secretary in the Ministry of Home Affairs.

The report recommended that judges be able to summon and examine any person they consider appropriate, to examine the accused at trial, and to draw adverse inferences if he refuses to answer.

Presenting the report, Judge Malimath said the present system was weighted in favour of accused and did not adequately focus on justice for victims. He said that at the core of the report was the “duty of the court to search for truth”.

Urging the Indian government to implement the Malimath Report, Mallikarjun Kharge, Home Minister for the state of Karnataka, noted in September 2003 that India’s conviction rate averaged 16%, and that the rate in Karnataka was 28%.

India’s population in July 2007 was 1.1 billion. When of if the report is implemented, the number of people affected by criminal adversary system will decline to 600 million world wide, and those affected by the investigative system will increase to 2.7 billion.

Civil law. The Hon Russell Fox said in Justice in the 21st Century that a civil case in Germany takes a total of about a day. .

Former British High Court Justice Sir Hugh Laddie QC wrote in Legal Week in May 2006: “Go back to the drawing board and consider the possibility that the [civil] adversarial system is past its sell-by date.”

A Legal Week poll of senior partners at 100 law firms found in June 2006 that 60% said the system is “an essential pillar of British justice”, but 40% agreed that the system was “past its sell-by date”.

Sir Hugh Laddie noted in The Times of 22 May 2007 that a small to medium patent case costs three to 10 times more in England than in Germany or the Netherlands. He wrote: “Perhaps it is time to do the unthinkable and start making our system much more like that used by our continental colleagues.”

* * *

Reviewing Serial Liars for NetworkedKnowledge in 2007, Dr Robert Moles LLB Hons (Belf) PhD (Edin) wrote: “One of the most enjoyable books I have read in years … Mr Whitton’s remedy might look extreme now, but in a year or two it will represent the conventional wisdom.”

Ken, I wonder too what the bee in Whitton’s bonnet is?

I certainly wouldn’t advocate changing the common law wholesale. In fact, I really love the common law. I think there are some procedural improvements we could borrow from other jurisdictions, but we should weigh them up carefully.

You are right. The cost in retraining the entire legal profession would be insane. And it isn’t at all efficient. Observe that Italy’s switch to a more “common law” criminal system didn’t really work. It’s something to think about – it could be an expensive waste of time.

I found Hitchens’ argument elsewhere in the book to be riddled with pigheaded conservative duckspeak especially his chapter on drugs. But the central argument viz the virtues of the common law system in preserving liberty are sound.

Given his selective use of facts and rigid self-righteous proclamations on drug policy not to mention boneheaded assertions like ‘no-one drinks booze to get drunk(!)’ I’m inclined to think he’s misrepresenting the extent of European ‘tyranny’. He mentions Napoleon about 3000 times.