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The emergence of a new legal system

Explaining the emergence of equity to people has always been relatively hard, and if truth be told I was never that sure that I understood myself. Equity was a 'cut out' system, as it were ; a way of circumventing writ-based common law and getting quick justice that eventually hardened into a complex but structured sludge of civil rules and case law.

England seems to be reaching that point with the new administrative and innovative systems that have proceeded since 1964 and the days of the industrial levy courts. We have tribunals for unemployment, social security and immigration; basically near-unaccountable family courts which generally meet in secret; and a whole body of administrative rules that are now routinely applied to executive and local authority behaviour but that seem to be located in what lawyers think that people should do.

There is enormous potential for this new system to be equipped with all the materials and baggage of the surveillance state and to form a new sort of legal system in which lawyers are discouraged, arbitration is enforced, and civil disputes are subjected to agreed solons drawn from religious or professional communities.

I'm not so sure that this is a good development. I love a day down at the employment courts as much as the next fellow, but half-cut attempts to create a civil law system that end up bolted onto some political pragmatism or other do make me wonder what it is that has been built in England. The only thing that redeems the system, I suppose (alongside the fact that it generally works) is that it is not, at least, the American travesty of tort courts and champery that has taken to regulating public and private life over there on the back of the insurance industry.

Habits once learned are not easily forgotten. Will future governments learn from the tribunal system and build a system of community justice that involves local punishments, local prejudices, and a freewhelling approach to rules of evidence? Are we on the high road to 'tickbox criminal law'?

Thomas Carlyle was once congratulated by a Scottish friend on deciding to accept the world. 'Well, you damn well have to', he was told. I wonder if we're not going to regret that attitude when we finally look around our prison and see what has been built.

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