Saturday, 27 March 2010

What Is "Bad Law"?

I now have a weekly internet column at The Lawyer called "Bad Law".

I am writing a book with the title "Bad Law".

And I am also giving talks entitled "Bad Law" in Nottingham, Birmingham, and Oxford (and have already done so in Cambridge).

So I suppose I had better set out what I mean by "Bad Law".

By "Bad Law" I mean the actual or reported misuse of law, and the emphasis on approaching that actual or reported misuse in a critical and source-based way.

What does that mean in practice?

First, I should say what I mean by "good law".

Law is very good in performing certain discrete and narrow functions.

If I owe you a debt, a court can give judgment, allowing you to enforce it; if I cause you personal injury, a court can determine the extent of my liability and quantify any loss; and if I am a thief, a court can determine my guilt and pass sentence.

Of course, in each of these cases, there could be a miscarriage of justice: the court can get it wrong. However, the underlying substantive and procedural areas of law would appear to be generally sound and uncontroversial: whether it be contract, negligence, or criminal.

Where I begin to see "Bad Law" is when the law is being used to serve a wider or ulterior purpose.

For example, in civil law, the use of libel law in "reputation management" or copyright in "digital rights management".

(Indeed, the use of the word "management" signals that civil law is up to no good.)

Libel law, if it should exist at all, should be about defending and vindicating reputations, not "managing" them; similarly, copyright is ultimately about providing permissions for what otherwise would be infringements, not controlling lawful use.

(And I have written elsewhere that copyright infringement is not theft.)

In criminal law, as opposed to civil law, "Bad Law" seems to me to be when either criminal liability is used in an inappropriate way, or when charging and prosecution decisions (which effectively mean whether there will be a conviction in many cases) are made on a misconceived basis.

For me, recent examples of such "Bad Law" in a criminal context are the Paul Clarke shotgun case and the Paul Chambers Twitter "Bomb Hoax" case.

In both cases, the decisions to charge and prosecute appeared to me to be incorrect and so I set out in blogposts why this was so, publishing or linking to the relevant materials as appropriate.

"Bad Law" also deals with the media misreporting of legal matters: the "law is an ass" staple, which often turns out to be crap journalism, and not crap law.

Sadly, coverage of legal stories, including in the broadsheets or on the BBC, is generally no better than with stories that involve medical or science issues.

This is particularly so since many newspapers no longer have the resources to have a reporter sit in court all day, and get to know the law; and consequently the media is often dependent on the police or PR agencies to "explain" what has happened in court cases.

However, it is possible for anyone to look critically at actual and perceived examples of the misuse of law; to look at the relevant materials and guidance (now easily available on the internet); and so basically work out for oneself whether some legal example is really "Bad Law" or not.

In exploring "Bad Law", one should never argue from authority; it should not matter whatsoever what legal qualifications or experience one has, as long as the legal issues are properly set out and, when possible, sourced and linked.

At bottom, "Bad Law" is a way of promoting critical thinking and a source-based approach to legal issues as they arise.

Accordingly, "Bad Law" is auxiliary to "Bad Science", "Bad Astronomy", "Bad Psychics", and so on; it is a project within the wider skeptical endeavour.

It is sometimes said that "hard cases make bad law".

Maybe; but it often seems to me that it is soft cases - cases where the law really should not be involved at all - where those who implement, enforce, or practice law make "Bad Law" the most evident.


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gyg3s said...

""Bad Law" also deals with the media misreporting of legal matters: the "law is an ass" staple, which often turns out to be crap journalism, and not crap law."

It's very frustrating to read newspaper stories about a case without the charges or cause of action being reported. The poor availibility of, for example, particulars of claim in the internet age, in order to gain a deeper understanding, is shocking.

The subsequent ignorance this engenders in the misunderstanding of, for example, race and employment law is disturbing. I'd say that at the heart of 'Ridgeway' was a fear based upon ignorance and misunderstanding of race law. Whilst absurdities in the work place are born of a misunderstanding of employment law.

Phil said...

the use of the word "management" signals that civil law is up to no good

Nice. There's a deeper philosophical (jurisprudential?) point here, about whether managing behaviour to produce a desirable outcome can (or should) be done through the law. It seems to me that regulation in its various forms - from the FSA to the HSE and on down to ASBOs and control orders - is a very poor fit with the law, as it's about prospectively inducing compliance rather than retrospectively imposing costs or penalties. Nevertheless, the law is increasingly having to budge over to make room for this kind of arrangement.