So far I’ve been arguing that the traditional liberties of the English have been maintained precisely by the masses being able to understand the law and the liberties it affords by themselves and assert it against the authorities directly without the need for clerical intermediaries like lawyers. I’ve referred to the traditional American colonial arrangement where justice is administered by a panel of laymen and every party, sometimes with help from friends, can represent themselves in such a court. Both the lay magistery and even the jury itself itself are testimonies to the old Anglophone conviction that the law fundamentally is something which can be directly understood and administered by the masses themselves.
Naturally I am not suggesting that the legal system, as it currently exists, can be handled by any laymen. The legal system today are framed and maintained by lawyers who, currently, have a sole monopoly access to it. It is therefore in their interest to create as high barriers of entry to it as possible to maintain their control over it and make themselves indispensable. As such, by making the law as tortured and convoluted as possible, requiring arcane and esoteric knowledge only they have the time and resources to master, they alone shall remain masters of it. It is no more different than Roman clerics of old refusing to translate the Bible into the vernacular, maintaining only the Latin Vulgate, that only those read in Latin may understand and use the Bible.
This point would be obvious once when we appreciate the fact that most modern law today is literally just the invention of men. They are not like the laws of physics or even engineering, where we are discussing the structures of creation maintained by a will beyond mere mortals. The law today is an artificial product of mere men, maintained only by human will, and can most certainly be altered at will. There’s nothing magical about “the law” that require a select group of divinely inspired clerics who alone has access to its secrets (and even if we are talking about divine law, as a good Protestant I don’t accept a magisterial monopoly on discerning its contents and meaning). The current barriers of entry are merely a matter of convention, not natural law, no more different than requiring the use of Latin in court rather than English.
To see an example of this we can look to the practice of conveyancing which was once a monopoly of solicitors, but now is accessible to non-lawyers. As the following legal textbook explains:
Previously, solicitors had enjoyed a complete monopoly in matters of conveyancing (i.e. transferring ownership in land from one person to another) but, in 1985, the first significant change in the work of solicitors occurred. Despite the fact that many solicitors were financially dependent on the income produced by conveyancing, there had been criticisms of the low quality of the work and the relatively high charges for it. So the Administration of Justice Act 1985 (Part II) introduced a system of licensed conveyancers which allowed nonsolicitors to carry out work for members of the public and s37 of the CLSA 1990 [Courts and Legal Services Act 1990] ensured that non-solicitors involved in conveyancing work would be suitably qualified, accountable and insured against the risk of loss to the client. There had been considerable pressure from banks and estate agents to open up the market to enter into competition with solicitors.Unlocking the English Legal System (5th Edition)
It is interesting to note the distribution of conveyancing from lawyers is because of “criticism of the low quality of work and the relatively high charges for it”, in short the lawyers were doing such a bad job at it. But then again, as the free marketer would say, when you have an artificial monopoly by one group, they are shielded from competition and have no incentive to do the work well.
However the example of conveyancing make the interesting point about the residue “realness” about the law. While most law today is made up, they deal with “real” subject matters like actual land, medical practices, ship practices, the structural integrity of buildings, pollution and the environment, etc. Things like conveyancing, medical law, laws of admiralty, environmental laws, etc, etc, as such deal with subjects which are as real as those dealt with by physicists and engineers. However, if this is correct, then that would also provide an additional explanation why the solicitors were doing such a bad job with conveyancing: they were experts on the law, not on real estate or land use.
This as such goes to my main point in the title: Lawyers ultimately are merely inferior professionals, they are not doctors yet proport to regulate medical law, they are not environmental scientists but handle environmental law, not accountants themselves but are needed to handle tax law.
If this argument is correct, then there is a really simple way to dismember the lawyerly monopoly on the law: in fields which require expertise, let the expert body themselves judge and regulate the law. The medical board after all has its own code of ethics, there’s no reason why they cannot simply have additional training or licensing to handle medical law, not just for doctors but really anyone licensed in the medical field including nurses, first responders, etc. Since they understand medical practice better than anyone, they would have the required expertise to know how to judge and evaluate the ethics of such practices. Accountants can handle tax law, architects or building contractors handle building codes, etc. Instead of bizarrely having one “jack of all trades” lawyers attempting to regulate all these professions, let all the lay professionals handle the regulation of their own fields.
In this it is interesting that the US, unlike most British commonwealth nations, does not offer law as a first degree. As I understand it, you have to have a first degree before going on to law school. I’m not sure what’s the history behind this, but I think it does reflect perhaps the old idea that law is not a profession in itself but something which sits on top of other primary subject matter.
How I would tweak is where, instead of having a singular law degree, simply create 6 or 12 month diploma programs to allow accounting graduates, real estate graduates, etc, have a diploma in tax law or building codes, etc. So we can largely eliminate the legal profession by simply parceling out all their tasks to the primary experts. Of course there will be a lot to discuss about whether we can really parcel out everything and whether there would have some “residue” “pure law” left, but I think the American approach is generally the right one and should be developed a lot more consistently with the Founding Spirit of America where everyone should have access to the law and should be able to understand by themselves without the need of a single clerical class with a monopoly on the law.