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Tired jargon and ritual subvert our legal system

Barristers ‘dining’ at King’s Inns are like prostrate vampiresFrank Armstrong 

 

The Junior Cert ‘Civics’ syllabus enjoins students to understand that “laws and rules serve important services in any community or society, including the peaceful resolution of conflicts, the protection of life and property etc”. But there is no serious attempt to demystify the law as teachers are not required to have a legal education.

In contrast, in France law is seen as part of a general education. René David wrote of this common familiarity as being an “element presque normal de la culture generale”. This relationship has much to do with the accessibility of the original French civil code which supposedly owes its clarity to the need of the draftsman always to ask himself whether his words would withstand the criticisms of a highly intelligent layman like Napoleon, unfamiliar with legal jargon.

Our common law system is quite different. Legal judgments as well as statute are enunciated in language alien to the wider population. Even our constitution contains ‘unenumerated rights’. Legal professionals remain the custodians of justice and jealously preserve their status. The reaction of many barristers in particular to the threat of politicians exercising a role through parliamentary enquiries was revealing.

Max Weber, the great German sociologist, was critical of how in common law systems – such as Ireland’s – the formulation of law was left to the professional lawyer: “The extensive participation in the process of juridically experienced and trained experts, who to an ever increasing degree devoted themselves ‘professionally’ to the task of ‘counsel’ or judge, has placed the stamp of ‘lawyers’ law’ upon the type of law thus created”. He said that this “lawyers’ law” served up a convoluted reasoning that “is tied to the word, the word which is turned around and around, interpreted, and stretched in order to adapt it to varying needs, and, to an extent that one has to go beyond, recourse is had to ‘analogies’ or technical fictions”.

Legal casuistry as Weber termed it extends to the rituals that surround the education of barristers. As a student in the King’s Inns I was forced to endure what I regarded as the depredations of compulsory dining which served no educational purpose whatsoever.

Originally the  institution which styles itself “Honorable”, founded in 1541 during the reign of King Henry VIII, did not provide formal tuition. Instead young men were treated to the wisdom of their elders as they dined. Roast beef and claret were considered a suitable habituation to the customs, mores and vernacular of the profession.

Today students gather for their designated dining dates – twelve in all – in the Gandon-designed hall on Henrietta St, donning black capes that give the festivities the appearance of a vampire convention. They are then seated at tables in a great hall to await the entry of the Benchers, – august members of the judiciary and grizzled senior counsel – who oversee the revelry from a table on high. As these luminaries enter the students are expected to bow in feudal deference. The seniors acknowledge this with a slight prostration of their own; an anthropologist might wonder at these customs.

Retribution for a lack of decorum could be immediate. In my year (2006) exception was taken by the then Chief Justice to the insufficiency of students’ bowing. Permission to go to the toilet was temporarily withdrawn. At dining a trip to the lavatory is a privilege granted by way of permission from on high. In most walks of life such a denial of a basic human imperative would provoke a riot but owing to a prevailing omerta, no such response was forthcoming. Perhaps the promise of the untold wealth of Tribunal El Dorado made nature’s call seem less urgent.

 

T

he real rationale for dining, the benefit of interaction between novice and practitioner, had been lost as, except on rare occasions, barristers are kept well away from the baying student sans culottes. Thus the contemporary hybrid had degenerated into a glorified piss-up where students were lulled into submission by wine that would make a salad wince.

Twice a year, so-called ‘grand’ nights take place when each student is granted a whole bottle as opposed to the customary half. The consumption of so much cheap booze at an early hour had predictable results: many students wound up roaring drunk by nine. On both ‘grand’ nights stories emerged of students suffering broken bones (two broken ankles on the last occasion) as they staggered homewards and of prominent members of the judiciary being harangued by students under the spell of the wicked brew. For anyone with an over-fondness for the bottle, dining was an atmosphere that hardly discouraged over-indulgence.

The most nauseating meal occurred after the triumph of the King’s Inns hurling team in a competition involving about three other colleges with miniscule numbers (while the King’s Inns team was allowed to field practising barristers). This collection of fine young men had, apparently, single-handedly altered the prevailing perception of the institution, at least in the estimation of the then President of the High Court. Fêted like returned astronauts, they were to be placed in the pantheon of Gaelic champions alongside the Fianna. No longer would the institution be associated with West-Brit cricketers or pansy debaters. A nation once again!

The denouement arrived at one of the final dining nights with shades of Nuremburg. Here the team, heroes to a man, were presented with their medals by one of the esteemed Benchers. Each member was accorded a stirring accolade. The whole ceremony seemed to go on for hours and because departure from the hall was prohibited I proceeded to imbibe quantities of the Punta Negra. Now oblivion was preferable to that tedium, but the hum of speeches continued as each substitute was accorded his due. At least by that stage I had reached a ‘black point’ of no return.

Of course it is easy to make fun of barristers and the King’s Inns. But simply merging the solicitor and barrister professions may not be the best way forward. The solicitors’ profession has become increasingly corporate in the last twenty years. Access to justice might become even more difficult in the event of large law firms becoming more dominant than they are already. Instead, we need to focus on providing a legal education for secondary school students and attempt to make the language in which law is expressed less impenetrable, and on reducing legal fees. Increased access to mediation would also promote a less adversarial and costly system. And the system of ‘devilling’ where junior counsel go unpaid for a year or two in apprenticeship to an older worthy only results in manic greed once the neophytes have attained some competence. We will always need expert legal professionals, but tired rituals and archaic language have no place.