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Justice and the Law

a short discourse on naivety

· law,justice

So, I've been thinking of something original to say about the Law. No one really wants to hear about boring stuff, like changes to section 1045XX(3)(a) of the Taxation Act (not sure if that section exists) or the latest theory of jurisprudence (yawn)...

But here's an interesting one - Justice. We bandy that word around all the time. Also, Principle, Fairness and Equity. Do these words have any meaning in the context of the Australian Judicial System, particularly in Civil Law, the area of law in which I practice?

I recently appeared on behalf of a client in a Magistrates Court trial. It was a relatively small matter, which could have been resolved easily, but for the represented parties’ insistence that Principle and Justice were more important than commerciality. After 5 years of interlocutory proceedings, they finally had their day in Court. At one point during the trial, my client intoned to the Magistrate:

"It’s a matter of Justice, Your Honour!"

My legal opponent practically rolled her eyes 360 degrees.

“Justice”, she mumbled. And then louder “Justice!” In quite a scary voice that she had reserved for demolishing my client in cross examination, she said “Your Honour, I am sick of the parties talking about Justice and Principle. There is no such issue before you, Your Honour. All that is relevant, is evidence and the law. That is all!”

Well, I had to say something smart to counter that blasphemy. “Your Honour” I said in my best lawyer voice “I used to believe in Justice and those sorts of things in law school. But over many years in litigation, about 20 I believe, I have been sadly disabused of that notion.” I then continued bravely “However Your Honour, my Friend [that’s how we address the other side, even if they’re cleverer than us] forgets one thing. We in the legal profession may have become inured to the idea of Justice, but our clients still believe in it deeply, including my client who sits before you today”.

Whew, what a moving speech. I felt like a C rated actor in a poorly scripted drama. But the more I thought about it, the more convinced I became that I was right. Most litigation lawyers may have abandoned Justice (at least the ones not fresh out of law school), because we have seen it fail our clients so many times. But that doesn’t mean that Justice doesn’t exist. It may have died in the heart of the Judicial System, but it shines resplendent in the hopes and expectations of our clients.

So, when I become despondent about the J word, I think of my 76 year old Sicilian client, who believes in that idea more than I do. He is the reason I do this job, because he and others like him inspire me to remember why I embarked on this crazy career in the first place. Something to do with Justice...

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