Into to the Common Law Legal System

ORIENTATION TO LAW SCHOOL LECTURE: INTRODUCTION TO THE COMMON LAW LEGAL PROCESS AND SYSTEM- 1990

Alvin Esau, Faculty of Law, University of Manitoba

Let’s begin with a hypothetical:

I. THE HYPOTHETICAL:

The lost mower

Suppose that Jane Smith lives on an acreage just south of the city of Winnipeg. She appears well to do. Her residence is large, overlooking the river, and there are horse barns and good-looking dressage and hunter-jumper horses and other signs of a wealthy lifestyle. Things look good but owning and managing a riding academy is a tough and expensive business and Smith must work very hard to keep the business afloat.

Given the amount of lawn to cut on her property, a couple of years ago Jane bought one of those fancy lawn mower tractors that you ride around on. It was a top-of-the-line model and she paid about $5000 for it and she still has the bill of sale from the dealer and the manual and serial number and so forth for the tractor.

Now in Spring of this year while she was out on a quick errand, she left the mower on the front lawn with the keys in the ignition because she was not finished cutting the grass. She was going to finish the job when she returned from her errand. However, when she returned the lawn mower tractor was gone.

Jane says she lives a “farmer type” existence and as anybody knows, farmers leave their keys in their vehicles. When you send your helper to fetch a bolt from the hardware store down the road to repair the combine in mid-harvest the last thing you want is for the helper to be searching for keys to the half ton.

Anyway, after the mower was gone, she contacted the police, who made an incident report, but the police subsequently had no leads as to the apparent theft of her mower.

[She also contacted the adjuster for her property insurance policy. However, she has not yet received the reimbursement under her insurance policy minus the $500 that she has to swallow by way of the deductible. This is because there is some issue as to the insurance coverage to begin with, due to whether a mower is even covered by the standard clause on possessions or whether it falls into a special category of vehicles not needed to be licensed and covered by vehicle insurance, but which require a special rider under property insurance. Jane did not apply for or pay for such a special rider. But for our purposes today let’s set this whole insurance issue aside.]

The found mower

Now in Summer, Jane was driving further south from her place on the road by the river when she happened to see that one of her neighbours several miles down the road was having a garage sale.

She wasn’t sure what made her stop at the sale- perhaps it was just the leisurely mood she was in or that she was always looking for another old pioneer wagon wheel that might be on sale. In any event, she pulled into the yard of Bob Jones. The Jones’s property certainly did not have the same presentation as her own. The house was small- everything looked a little unkept. There were a few family dogs, but no horses. She knew Bob Jones was married to Edith and they had five children and that both parents worked extra long hours to keep one step ahead of financial disaster.

Even though they lived relatively close from each other, Jane Smith did not really know the Jones’s, although she knew of them. Indeed, Jane Smith goes to the same Winnipeg megachurch of 2000 members as do the Jones’s, but they are not within her circle of social friends.

Anyway, Jane looked at various items for sale in the Jones’s garage, but then she happened to see a lawn mower tractor in the garage which was not for sale. The mower was the same make, model and colour as the one she used to have. True, they all look pretty much alike, but there was a chalk mark on one of the tires, the very same place as where she had a tire on her tractor fixed not long ago. So she asked Bob Jones where he had bought the mower. After some further information was provided by Bob, Jane asserted that she thought that the tractor belonged to her.

In fact, to make a long story short, when the serial numbers were examined, it was clear that the tractor in the Jones’s garage was indeed the same tractor that had once been in the possession of Jane Smith. Bob Jones was quite cooperative and cordial to Jane Smith and he quite agreed that the tractor had once been hers. But he had not stolen it!

Bob’s Story

Basically Mr. Jones's story was that he had been listening to CJOB one morning and some kind of program was on where people phone in and offer stuff for sale. A kind of “garage sale by radio” so to speak. Someone had offered a relatively new lawn mower tractor in excellent shape for $3000. For a long time the Smiths had spent inordinate time with an old push gas mower to try to keep up with the large yard and they had scrimped and saved for several years putting pennies and dimes away for the purpose of buying a riding mower. Bob Jones had a general idea that a new mower would cost about $4,000, maybe more, but he had not undertaken any in depth research on makes, and models and basics and frills of mowers. All he knew was that a relatively new mower for $3,000 sounded like a good deal.

So, Bob took down the number and phoned. A man calling himself Mr. Good answered and he told Mr. Jones that he had sold his acreage in the country near Steinbach and was moving into a condominium which he had purchased in Victoria, B.C. “It was not even a leaky condo,” he said laughingly. Anyway, he was just trying to get rid of the tractor quickly so he could move on to Victoria. It was arranged that he would bring the mower by truck to Mr. Jones' place, so Mr. Jones could look at it.

This he did, arriving in a new half ton truck with the lawn mower in the back. Bob Jones started the lawnmower up and inspected it briefly. He then asked for the original bill of sale. Mr. Good had a bill of sale for the tractor from a dealer in Steinbach listing it as bought by Mr. Good for $4000 a year or so ago and paid in full by cash. The serial number was on the bill of sale. Mr. Jones then paid $3000 cash for the tractor and Mr. Good left after making a new bill of sale to Jones and also leaving the original bill of sale with Jones. Mr. Good seemed friendly, nicely dressed, completely legitimate and genuine, and as they got talking, Mr. Good had mentioned some of the Mennonites from Steinbach that Bob knew personally, because they had left their dour Mennonite church with the mournful choirs and were travelling all the way to the big megachurch in Winnipeg which worshipped to the beat of a rock band. Mr. Jones did not for a second doubt the legitimacy of Mr. Good.

The Police don’t help

Now having heard Bob’s story, Jane said, “Well we better go back to the police,” which task Bob undertook to do the next day. The police took down the description of the man, Mr. Good. The police investigated and within days told Mr. Jones and Ms. Smith that they knew about the so called Mr. Good who had completely disappeared from Manitoba. He had been involved in a number of thefts and frauds. His real name was Mr. Rogue. The half ton truck was a stolen vehicle. The bill of sale for the tractor was an excellent forgery by Mr. Rogue complete with an actual stolen letterhead from a dealer of lawn mower tractors in Steinbach. The police were quite certain that Rogue had fled the jurisdiction and was very unlikely to be ever found. He was probably in some exotic clime somewhere having a good time with his ill-gotten gains. Even if he was found, he would undoubtedly not have any money to reimburse either Smith or Jones for any loss.

As to any claims between Smith and Jones as to the tractor, the police said that this was not their jurisdiction. This was not a criminal law matter, but rather a civil law matter dealing with property rights as between Bob and Jane, in which they would not get involved. No doubt Mr Rogue had committed a crime, but there was no evidence that Mr. Jones had committed a crime.

Well, do you agree? Might Mr. Jones be guilty of a criminal act?

The Crime of Possession of Stolen Property?

Suppose Jane says to the officers, rather unkindly, “Well, I thought possession of stolen property was a crime. Given that Bob here clearly is in possession of my stolen property, and he now has knowledge of this, surely he must now have to give the mower to me, or you will charge him. I presume that as part of the criminal process, property belonging to others is seized and at some stage returned to the rightful owner.”

If you were a police officer with some basic knowledge of the general principles of criminal liability what would you say in reply to Smith’s claim that Jones has committed a crime?

In your Criminal Law course you will spend considerable time working out the details of a fundamental principle, namely"actus non facit reum, nisi mens sit rea"- the intent and the act must both concur to constitute the crime- Fowler v. Padget (1798) 101 E.R. 1103. In summary we need both the actus reus -prohibited act or omission- and the mens rea- the "mental" fault element or the blameworthy state of mind. There is another principle that deals with the idea that these two elements of the crime must generally happen at the same time. That is, when Bob took possession of the lawnmower he may have committed the act of possession of stolen property but he did not actually know the mower was stolen, nor did he even have a suspicion that it might be stolen. He did not have a morally blameworthy state of mind. That is, he did not have the mens rea required for the crime. Knowledge after the fact that the mower was in fact stolen, does not turn his current possession into a crime.

Suppose we change the facts, and Mr. Jones had bought the lawn mower for $1000 from a suspicious looking character who could not provide an original bill of sale and seemed not to know too much about how the tractor worked? Suppose Mr. Jones says later, “Well I never asked if the mover was stolen.” What do you think? Might Jones still have a blameworthy state of mind?

Well, we will note at this stage that many crimes require only what we call subjective recklessness or wilful blindness, where a person does avert to the risk of a consequence happening, or a circumstance being present, or perhaps deliberately closes their mind, and thus we say they have a blameworthy state of mind even if they do not actually know something. The point is that the person can still be blamed on the bases of what was in their mind at the critical time. They may have hoped the goods weren’t stolen but they got such a good deal that they went ahead anyway and risked the possibility that they were stolen. Such a person might well be guilty. But this is different from the situation where a person honestly did not even consider for a moment that the goods might be stolen.

What if the person really was naive and was not even suspicious in the context where a normal, reasonable person would obviously be suspicious? Can we say they are guilty of a crime based on what they ought to have known? One of the big issues in criminal liability that you will consider in your Criminal Law course is whether it is fair to label someone as a criminal on the bases of objective negligence rather than subjective (actual) realizations that bad conduct, consequences, or circumstances are attached to the acts they are doing. You will see that there is indeed an increasing, and controversial, movement in our criminal law to stigmatize and punish people, not for bad thoughts that go with their deeds, but for failure to think, at least when we assume they have the capacity to do so. But for our purposes today we may assume that possession of stolen property requires what we call subjective men rea and thus the police will say to Smith that it is not their job to return the mover to her.

Making a Claim

Now, realizing that there was no chance of getting money from Rogue so as to pay for the loss of her tractor, Jane finally made her claim to Bob. She said, “Bob, I want my lawn mower tractor back.” In turn, Bob Jones said “No Jane. I paid $3000 for it, and we simply cannot afford to take that kind of a loss.”

Now notice that the making of a claim for the mower, and the refusal of the claim by Jones has triggered what we might call a dispute. Jane has made a claim and Bob has refused.

Notice, too, that what is going to happen in terms of the processing of this dispute is initially at least very much in the hands of Jane. Why?

Who currently has the tractor? As a starting point in this dispute, it is Bob who has the tractor in his possession and for his use. If nothing further happens, Bob is not the one who suffers a loss. It is Jane who is saying, “Bob I want my tractor back.”

Summary of the Facts

Smith......by theft to......>Good........by fraudulent sale to....>Jones.

II. SOME BASIC LEGAL CLASSIFICATIONS

This might be an appropriate place to outline some classifications within our legal system. While these classifications can be misleading, here are a few:

Criminal law v. Civil law

In law school you will learn that civil procedure is different from criminal procedure and that court cases and areas of the substantive law are often divided into the fields of civil v. criminal. Basically, this distinction is not particularly useful other than to say we have a field of criminal law and that everything else is in the so called civil law field. [Later in this lecture I will note that our use of civil law in distinction to criminal law should not be confused with a different use of the term civil law which is the label that is also used to describe a whole different legal system in contrast to our common law legal system.]

Criminal law itself is a contested field, but at the core, we are dealing with prosecutions brought by the crown (the government) against individuals (sometimes corporations) because they have allegedly violated some defined statutory rule found in the federal Criminal Code of Canada or the Youth Justice Act or some other federal statute passed under the Criminal law power that is exclusively a federal power (not provincial) by virtue of the division of powers under the 1867 Constitution Act. These statutes have provisions that prohibit you from doing something or sometimes require you to do something. Breaching the Criminal law may lead to various degrees of penalties, like fines, probation or even imprisonment, and also various degrees of social stigma. But arguably Criminal law should be limited to upholding and vindicated our most fundamental values as a community, and only activities that clearly risk severe harm to our physical or mental health or to our environment and property should be labelled crimes.

But once we get beyond the core of Criminal law, we also have all sorts of regulatory offences, arising from municipal, provincial and federal legislation that are also prosecuted in criminal courts and for which various principles of criminal liability and defences come into play, even though these are not crimes, properly so called. Even if you have no interest in ever practising Criminal law, you should know that the principles you learn in Criminal law and procedure are still important in lots of so-called civil law areas such as Commercial and Corporate law or Taxation or Environmental or Employment law and so forth.

In addition to this distinction between criminal law and civil law, a related distinction is that between public law v. private law.

Public law might be defined as the legal rules, principles, policies and processes having to do with the organization and operation of the government and the relationships between the government (representing the community as a whole) and the individual. So for example, Constitutional law, Administrative law, and Criminal law are all areas of law that might be classified as being in the Public law area. Traditionally, we think about crimes as actions that may well have individual victims, but a crime is also said to be a breach of societies’ fundamental norms, and as such is a violation committed against the community. Thus, the prosecution of the crime is brought against the alleged perpetrator by the government. A victim may choose to forgive or be uncooperative in the prosecution, but when all is said and done, it is the agents of the government, and not the alleged victim, who decides whether to prosecute and what the penalty will be for a conviction.

Private law might be defined as the legal norms having to do with the relations between individuals, and this would include private groups and corporations as well. Thus, Contract law, Tort law, and Property law are classified not only as Civil law in contrast to Criminal law, but also as Private law because they generally deal with legal obligations between individuals.

This private-public distinction can be problematic. For example, one of the main issues in Administrative law is when and how courts review the actions of administrative boards or actors. If a public official or board is delegated by legislation to do something or decide something and you do not like what they have done in your case, you may go to court and argue that the administrator exceeded his/her authority, or that the decision failed to meet some legal procedural standard of fairness, or even that the substance of the decision failed to meet some standard of reasonableness. There is considerable debate about how much deference the courts should give to various administrative tribunals and actors, and when the courts should step in and second guess and overrule decisions made by public authorities. But my point is that the courts do not just review the decisions made by governmental actors and tribunals. The courts have more recently also taken jurisdiction and reviewed decisions made by private associations and clubs. When the courts impose a standard of due process on private group decision making, how can you say that Administrative law is only a subject within the field of Public law?

Take another example. We are witnessing a considerable movement in Criminal law toward restorative justice processes, where the individual victim and/or smaller subset of the community may well be given authority to deal with a crime in a way that might trump the traditional authority of the agents of the government. Again, this illustrates the breakdown of the private v. public dichotomy and even the civil v. criminal dichotomy. It should also be remembered that governments are also “individuals” for purposes of the so-called private law. Governments are also subject to the law of contract, tort, property, and so forth, in their dealings with specific individuals.

Public Initiation of Enforcement v. Private Initiation of Enforcement

A third preliminary distinction, and one that is very important in the legal system, involves that part of law that is directly enforceable by government officials and that part of law that is left to private individuals to enforce or not at their discretion, and we might add, largely at their own expense and inconvenience.

I would argue that taking a dispute to court is too expensive, takes too long, involves an adversary process that is often manipulative and hurtful to participants, and offers remedies that may be unresponsive to the real needs or interests of the parties. Eventually we will look at small claims court and discover that even this process involves limited jurisdiction and difficult enforcement mechanisms.

However, while affirming the desirability of consensual alternative processes such as mediation and arbitration, most people would likely accept the view that going to court is sometimes necessary. The reasons seem obvious. If legal rights are to be actualized, as a last resort there must be a process of enforcement to get a remedy for breaches of them. Sometimes those who do not fulfil their legal duties should be held accountable so as to prevent them from continuing to shirk those duties and harming others. The very notion of enforcement means that at some stage the law must be coercive and by this I mean that the law at bottom involves the use of violence or the threat of violence. The orders of the court are backed by state violence. The sheriff, at the point of a gun, can seize your goods if a court so orders. You can be put into jail for contempt of court because you did not do what the court commanded you to do. Resistance on your part may be met with coercive force by the officials of the law. You can talk all you want about law as a system of rules to coordinate and facilitate human interactions, but do not forget that law is also a system of state violence. In the name of law people are coerced to give up property or personal freedom because they have violated the law. This is necessary, but it is also sobering. The rules and principles of law that you study must be viewed critically. This law stuff is not a game. We want to have some clear sense that our rules are just and legitimate before we go about coercing people into compliance.

We do not often think of the law as fundamentally linked to state violence. To be sure, the whole system would collapse if people only obeyed the law or court orders because they were backed by the violence of the state. It is also true that law is much more about the avoidance of violence and the prevention of disputes by structuring transactions and ordering activities so that expectations are clarified, and needs met. But we should not forget that while law is not legitimated by state coercion, it is still true that at bottom the law of the state is backed by the violence of the state. When the court orders you to hand over property to someone, or orders you to do something, or refrain from doing something, you obey the order of the court or the judgment of the court. The “law” has spoken. But while we do not see the exercise of the violence of the state in most cases, behind this obedience stands the reality that the full weight of the police power of the state may be brought to bear if the court order is not obeyed.

All areas of the law, whether civil or criminal, private or public, are ultimately enforceable by officials of the state. However, there is an area of the law where the government itself takes the overall initiative in directly enforcing the law. For example when dealing with the commission of crimes or many regulatory offences, there are police or enforcement officers who investigate and lay charges that are prosecuted in court by the government. Governments at all levels may also set up tribunals or agencies where the government has taken a role in the enforcement of some matters of private law. For example, perhaps the province has a landlord - tenant office where you can complain that your landlord wrongly withheld your damage deposit, and after an investigation, or perhaps after an informal hearing if necessary, the government, so to speak, will actually help you get your money back, by coercing the landlord if necessary. True, you initiated the complaint, but substantial investigatory and enforcement work was done directly by government officials.

However, in many areas of the civil law the enforcement of the law is initially left to those individuals who are directly affected by the alleged breach of the law. For example, if someone apparently breaks a legal obligation under a contract or causes damage through a negligent act, or has violated a property right, it is the victim who must seek redress for the violation. Unless a crime has been committed, complaining to the police or some government official will usually get you nowhere. As we have noted, the property rights issue of the lawn mower as between Smith and Jones is not a Criminal law issue, and the police may be interested in getting Mr. Rogue, but they are not interested in resolving a dispute between Smith and Jones. Rather, Smith and Jones will be pointed to the courthouse door. If you want a remedy for a violation of your legal rights you must bring an action in court. Only after the court adjudicates and makes an order will the violence of the state be invoked if necessary to enforce that order. The vast majority of such claims will be settled without resort to further proceedings, because the facts and the law are so clearly in favour of one side or the other that it would be pointless and costly to continue to pursue or resist further. But, whether for tactical reasons, or for reasons of disputed facts or law, many cases are litigated in court, and settlements are achieved in other cases within the shadow cast by the courts, as lawyers predict what a court would decide if the case went to adjudication.

Thus, if a person perceives that their legal rights have been violated and the alleged perpetrator refuses to even acknowledge the complaint made against them, or denies liability, there has to be a process that is backed up by the force of the state that offers an avenue to adjudicate the matter. This is part of the violence of the law. While the techniques and tactics of litigation can amount to a ritualized war, and the violence of the state is used to enforce court rulings, ironically litigation on one level is actually a process of keeping the peace, by creating a forum where disputes are “peacefully” resolved by the application of legal norms to the facts and by the making of an authoritative and enforceable pronouncement of duties and rights as between the parties. If there were no state sanctioned and enforced court system of dispute resolution, we might well have a much higher degree of personal violence in society as aggrieved parties took self-help action.

Now notice that the state is potentially involved in enforcing all the law in the sense that the state sets up the judicial branch and pays for the salaries of the judges and provides the courthouses and machinery of justice, but for vast areas of the law, even many areas of so called public law, it is still up to individuals to bring claims to the courts for adjudication and possible enforcement of violations of legal rights. This process involves substantial expenses and inconveniences and risks of further loss. You can’t just find some government branch that is going to tell you what your legal rights are and enforce them for you. This means that our legal system contains thousands upon thousands of rules and duties and rights, but this does not mean that this corpus of norms is actually used and enforced throughout society. The law does not apply itself. Rules, in themselves, do not create their own interpretation and enforcement. Unless the legal system is accessible to citizens there will be a big difference between the law on the books and the law in reality.

III. RESOLUTION PROCESS BEFORE GOING TO COURT

Now returning to our hypothetical, the first question I want you to think about is NOT the question of the merits of the case as between Jane and Bob, nor what the law might be as applied to this fact situation if Smith goes to court against Jones, but rather the PROCESS by which this dispute might be resolved instead of going to court.

What can Jane do now? Any ideas?

Exit?

One option is to walk away. Avoid the dispute and take the loss whatever it may be? It is possible that Jane might believe that she has the legal right to the tractor, but given how Bob acquired the tractor and the relative poverty of the Jones’s, perhaps she shouldn’t press her claim?

Suppose that she does not press her claim and two years from now Bob wins the lottery and sends her $50,000 and a card which says, “Thank you for your loving mercy shown unto me. What you sow you will reap in abundance. Here is the money for your mower, plus some extra.” Unlikely, eh?

Now let’s assume Jane does not walk away, and we will set aside all the interesting questions about when and why people do not walk away.

What are Jane’s options?

How about Self Help?

Jane remembers that she has another key to the mower. Suppose that Jane Smith notes the times when the Jones’ are away from their home and then one day when they are gone, she walks into the garage and takes “her” tractor back? Any problem?

Aside from the question of trespass and possibility of theft, even though Jane thinks she has a “color of right” to take “her” tractor back, how do you think Jones would feel about it? It would not take Jones very long to figure out that Jane has taken the tractor back. Perhaps Jones will now go to Jane’s house with the key he has and take the tractor back again? Before you know it we have an escalating feud.

(So just as in criminal cases, where the state comes in and says to the victim, we will deal with the offender- it is not your job to retaliate tit for tat, but rather the state has the monopoly on the use of violence to hold offenders accountable, so too in civil cases. The initiative to take action in court to enforce civil law is left up to the individual aggrieved by a breach, but the state sets up a civil court system so that alleged breaches of the law may be adjudicated and vindicated in a peaceful way. Law, while linked to state violence, fundamentally deals with the peaceful resolutions of disputes and the prevention of disputes)

Negotiation?

Many disputes are settled by direct negotiation between the parties, and often without reference to the formal law, if any, dealing with the issues that are in dispute. Even when the law might favour the position of one side or the other, the parties may have other interests and goals which might be brought out and fulfilled in a negotiated settlement even if the settlement involves foregoing so called legal rights.

In terms of the process of resolving the dispute by negotiation, does it matter that Smith and Jones are more or less neighbours, or that they go to the same church?

Don’t you agree that it is more likely that as between complete strangers, somebody like Bob might say to Jane, in effect, to be crude and rude as people often are, “Fuck off. I am not giving the mower back to you.”

But in our situation, there is real potential that Jane and Bob despite starting off with a claim and a refusal, might move to some negotiated settlement? They are embedded, each in their own way, in a wider community that they share, whether it is the immediate residential neighbourhood or the church. Unresolved disputes ripple through communities and have consequences for the reputations of those involved and for how others will treat them. The communitarian side of the dispute both exacerbates the dispute, but also potentially provides a powerful resource and motivation to resolve the dispute. Bob cannot so easily say to Jane, “F off” as might a bunch of rugged individualists who live atomistic and autonomous lives from each other.

We may assume that in this context the reputation of Bob and Jane is far more important than the lawn mower. Would Bob have a bad reputation for not returning the mower? Would Jane have a bad reputation if she insists on the return of the mower and sues Bob? Matters of reputation depend on the normative character of the communities that Bob and Jane are part of.

You will often hear from your professors in law school that the legal profession generally suffers from a poor reputation in the eyes of the public, (and then some defensive comments will be made about how undeserved this reputation is), but my point here is that nevertheless within the profession, every individual lawyer will soon have a reputation as determined by other lawyers. Your reputation (for honesty, for fair dealing, for competence, for service) will be the most important asset you have. Once you lose that reputation you are toast, even if you are never disbarred or even disciplined. No shady dealing or sharp manoeuvring to win fame or fortune in any individual case is ever worth the cost to your reputation within the profession. Forgiveness and grace may percolate through families and small groups, but within a profession, once a good reputation is gone it is usually lost forever.

Now let’s jump right over negotiation and assume that Jane and Bob have or have not made some concessions, but in any event negotiations have failed. We are back to square one. Jane wants the lawnmower. Bob refuses to hand it over. So, do we go directly to court?

How about getting help from a third party?

While the police told Jane that she would have to go to court, what kind of third-party process of dispute resolution might be attempted first?

Mediation?

At some stage in this course we will deal briefly with the fundamental movement in our legal system toward alternative dispute resolution (ADR) processes. Mediation is a core part of the ADR movement. The idea here is that with the help of a neutral third-party mediator the parties will come to their own agreement as to what to do about the dispute. The mediation may involve a process of helping the parties to articulate their interests and identify various options, but the mediator does not decide the outcome for the parties. As in direct negotiations we do not expect that the parties are necessarily going to come to the same result as a court of law applying legal rules. In some cases the parties may find some win/win result rather than an all or nothing distribution.

As Arbitrator?

Now suppose that mediation has not worked, or perhaps that such a service is not readily available to the parties. Jane is getting really upset at Bob’s unwillingness to give her the lawnmower. It’s not like she can’t afford to lose it, it is a matter of principle. She is starting to feel doubly victimized. Recently when she attended service at Church she talked confidentiality to Pastor Firebrand about the situation. Jane said to him that she was going to see a lawyer. Pastor Firebrand reached for his Bible, flipped over to the New Testament and read some passages.

Not to foreclose the possibility that the Torah or Talmud or Koran or some other sacred book might be more appropriate to you, does anybody here know what passages of the New Testament Pastor Firebrand might be reading to Jane?

How about Matthew 18:15-18 and 1 Corinthians 6:1-8?

IV. DECISION OUTSIDE OF COURT

Now I want you to imagine that you are a Deacon or Deaconess in the Church of the Second Chance and Smith and Jones, with the urging of Pastor Firebrand, have taken the case to you as a kind of equitable arbitrator. Both Smith and Jones admire your fairness and leadership. After each of them has told their story you will decide the dispute. They agree that they will abide by your decision, whatever it is.

Now I am asking you as arbitrator to think about the merits.

How will you decide this case? What is the just thing to do here?
Should Smith get the tractor back, or should Jones be able to keep it?
Let’s start not with the conclusion, but with what factors or issues or material facts come to your mind as being significant to your decision.

In what way is your decision influenced by the respective behaviour of the parties? Who could best avoid the harm? Put another way, who was most at fault in losing the mover or getting possession of it?

Perhaps as an equitable arbitrator you might find that Jane was somewhat more careless than Bob? She left the tractor in the front yard with the keys in the ignition exposing it to the risk of theft, while Bob in terms of buying the tractor from “Good” acted in good faith, excuse the irony. Good appeared to have a valid original bill of sale and the price was not so unreasonable as to suggest that Jones should have been suspicious that he was buying stolen property.

Or do you think Bob should have phoned up the dealer in Steinbach and confirmed the sale to Good, or confirmed that Good lived on an acreage in Steinbach or whatever? Furthermore, Jones dealt with Good face to face, while Smith did not. Maybe Jones had the better opportunity to spot the fraud?

Could you say on behalf of Bob that it is only a twist of fate that he happened to buy the very mover that once belonged to his neighbour? If Mr. Rogue had sold it to some person north of the city instead of south of the city, Jane would likely never have seen it again. So long as Bob acted in good faith while purchasing it, why should he have to return it, just because it happened by pure chance that the original owner discovered his possession?

In what way is your decision influenced by the respective wealth of the parties? Who can best bear the loss?

It would seem that Jane might more easily bear the loss than the Jones’s?

Perhaps by who can best bear the loss we should focus less on respective wealth and more on the size of the yards needing to be cut? Perhaps Jones has a smaller yard that could more easily be cut with a hand pushed mower, while Smith definitely needs the tractor?

What weight do you give to the prior expectations of the parties?

What about remedies?

Is it all or nothing? Smith gets the tractor or Jones gets it?
Why not sell the tractor and split the proceeds?

Why not share the tractor?
Is there a win/win solution to the problem?

How about if Jane says to Bob, “We live close enough for this to work. I have lost my mower. You or your teenage daughter will come down every Saturday morning during growing season and cut my lawn. In fact, I was thinking of hiring a helper anyway. It is good that you have my mower. While you provide free grass cutting, I will hire your daughter at $10 an hour to work on cleaning the stalls. I understand she loves to be around horses.”

Now you might think this sounds hooky, but you will be surprised at how often disputes that are zero sum- games within the framework of the formal legal system may in fact be converted into more mutually satisfying arrangements when the issues and interests of the parties are expanded beyond the strictly legal considerations. But we must also admit that some disputes are not so expandable. Some disputes are purely a matter of distribution of funds from one side or another.

Perhaps sharing is out of the question and as an equitable arbitrator you might find that both parties are equally innocent, and that they should split the loss without selling the tractor.

For example, you might decide to leave the tractor with Bob, but only if we was willing to pay Jane $2,000. Perhaps we could fix the actual current market value for the tractor at say $4,000. Mr. Jones recently paid $3000 for it, but he did not know that the actual value of the tractor was $5,000 when originally purchased. One way to look at it is that Bob already has a $1,000 benefit by possessing the tractor. If we require him to pay $2,000 to Jane, (that is half the current market value) he is really only losing $1,000 because the tractor is worth more than he paid anyway.

Ms. Smith on the other hand has lost a $4,000 tractor. If she gets $2,000 for it from Bob, she has at least cut her loss in half. Conversely, given that Bob paid less than the tractor was worth, it might be easier to just return the tractor to Jane but require her to pay Bob $1,500, which would be half his loss.

Now in making your decision as to what to do, what factors are important, what remedies might be available, what normative framework do you draw on? Do you think it might make a difference if the arbitration involved essentially the same situation, but dealing with a stolen snowmobile and a subsequent fraudulent sale, but the arbitrator and the parties are Inuits from Nunavut? How about a stolen horse and two members of the Red River Riding Club who take their case in front of another member of the club as arbitrator? Does it matter a whit that you are the Deacon or Deaconess of the Church of the Second Chance?

I would suggest that perhaps the factors of loss prevention, or wealth, or equality of loss and so forth may well still come into play, but I also would think that there is probably a whole set of religious expectations and norms that the parties are committed to that may have a big part in shaping the decision.

V. LEGAL PLURALISM

I would suggest that some of the associations that we belong to are capable of generating a normative universe that may be different from the normative universe of other groups or of the larger society taken as a collective. There are various groups in our society who have an inside law that is distinct from the outside law of the state. At law school we study the outside law of the state and fail to realize that many people in our society in fact live their lives according to a different law than what we study.

Notice that the logic of leaving vast areas of the civil law up to the parties themselves to invoke and enforce, and also the logic of allowing people to negotiate their own solutions that may be different than what the formal law would command if the case went to court, means that we have considerable room in our legal system for what we call legal pluralism. To a significant degree, so long as we are not dealing with criminal law, people with mutual consent can contract out of the formal legal norms of civil law and live according to the legal norms of their own community.

There is a jurisprudential debate about the definition of law properly so called. Does law include customary norms that are enforced by social sanction and considered binding within various ethno-religious communities? I would argue that the core rules and principles considered binding in a community and the processes used in the community to create those norms and adjudicate them constitute a legal system, properly so called. Thus, we have many legal systems within the shadow of the larger formal legal system of Canada. The formal legal system itself has the capacity to allow legal pluralism to flourish, or on the other hand the formal legal system could severally limit such subsystems.

When an agreement made according to inside law, or an action governed by inside law is taken to an outside law court (state court), will the court recognize inside law and enforce it as a contract, or will the court impose outside law norms? There are all sorts of combinations of interactions between inside law and outside law, with our courts showing various degrees of deference to inside law on many occasions as well as occasional outright refusals to apply inside law as contrary to public policy. The point here, though, is that even when the courts will not enforce inside law, that does not mean that inside law does not exist and is not used within a community. If someone goes to court to escape inside law, they may well win, but that does not mean that the community will change, unless people regularly go to court. So long as virtually no one challenges inside law in outside law courts, the community will live according to its own norms.

If Smith and Jones want to decide their case within the Church of the Second Chance and by the values of that community rather than in Court, why should we not let them? Well, this leads us into political hot potatoes such as debates about whether the Islamic community should be allowed to use its own norms to decide family matters because we fear that women are not truly consenting to the patriarchal norms of that community. But why should other religious groups have the freedom to arbitrate disputes according to their own norms, but Islamic communities can’t? Should Family law be turned into a process akin to Criminal law, where only one set of state norms applies to everyone and is directly enforced on everyone, and absolutely no different private arrangements are allowable?

VI. GOING TO COURT: THE CREATION OF PRECEDENT

Now let’s move on here. Assume that negotiations have failed. Assume that there was no mediation or arbitration session. Assume that Jane wants her tractor back and cannot persuade Bob to return it.

If Jane thinks she has the legal right to get her lawnmower back, she can go to court to invoke the violence of the state to get it back, because Bob is refusing voluntarily to give it back. The state in theory is supposed to have a monopoly on norm enforcement by violence. The Church of the Second Chance can adjudicate all it wants and so much the better if the parties comply. But the church does not have sheriffs and police that enforce the arbitrator’s decision. There may be all sorts of enforcement mechanisms, shunning and excommunications and so forth that are quite effective, but in the end it is only the formal law that is backed by the violence of the state.

Now let’s bypass for the moment the question of either Jane or Bob going to lawyers and being advised of their legal rights with respect to the tractor. Rather let us assume that you are now a judge who must decide the case according to law. How do you decide this case?

Instead of being an equitable arbitrator, you are now a judge in court hearing this case. Would your decision necessarily be the same as it was as an arbitrator? Why not?

What is different in this role of being a judge?

Suppose for a minute that there are no legislative or past case law precedents applicable to this problem, and you are the judge determining the matter for the first time. Suppose further that in general we have a convention in our legal system called “stare decisis” which roughly translated means standing by what has been previously decided. The convention means that like cases should be decided alike. If the state is going to use its violence to coerce someone into doing something, then the state should treat people equally. It would seem wrong that in one case involving a theft and then a subsequent sale to an innocent purchaser the court held that the purchaser should return the goods to the original owner, and then in another case the court said that the purchaser should keep the goods. Like cases should be decided alike.

The principle of stare decisis is not necessarily a principle of substantive justice. The law could be unjust, and yet the principle would be affirmed if the unjust law was at least equally applied from case to case. The notion of precedent is something we are all familiar with in everyday life.

Now I have asked you to think of yourself as a judge deciding this case as if no prior precedent cases were in existence. Why might you decide the case differently than you did as arbitrator?

Perhaps you will decide it the same way, but there is a fundamental consideration that might lead you to decide it differently and that is that your decision is going to be a precedent for future cases.

When you are a judge in a common law system (I will say more about this in a moment), you are not just deciding what the right decision is for these parties in front of you, you are deciding what the law should be for society!! One of the central features of a common law legal system is that vast areas of the law are not contained in legislative form. There are lots of rules and principles of law that are not found in statutes and regulations but rather are based on the past decisions that have been made by courts adjudicating specific disputes.

Of course, a great deal of our law is based on legislation and the courts may have to interpret the legislation and these cases also create precedent as to the interpretation to be given to the legislation in question. But notice that a substantial portion of our law based on precedent deals with rules and principles laid down by English courts over hundreds of years and the changes made to these rules as new cases are decided. We may say that these rules and principles are based on case law rather than on legislation. Sometimes we refer to this area of law as common law in distinction to legislation, although as I will point out, the term common law is also used to describe our whole legal system. Perhaps some of you are coming to law school without ever taking a law course in high school or a course in university that exposed you to some aspects of our legal system. Thus, it might be a surprise to you to discover that much of the law is not based on legislation passed by a democratically elected legislature, but rather is created by an unelected judiciary in the process of adjudicating specific cases.

Now, I want you to think of this Smith and Jones case hypothetical as being a case without a past precedent. Instead, you are going to create a precedent by deciding it. Previously, as equitable arbitrator, you talked about who could best bear the loss and the behaviour of the parties and so forth, but are there any new factors to consider now that your decision is going to be a precedent? The old factors have social dimensions, too, but remember your decision was confined to the immediate parties. But now the decision you make will have a circle of influence on other cases that might arise. What are the social policy implications of your decision?

I suggest at least two things: The basic social policies at stake are ..security of property rights...v. security of market transactions...

For example, if we decide for Jones are we encouraging theft by upholding a market for stolen property? True, perhaps we will want to have only “good faith purchasers for value” before we say that they can keep the goods, but nevertheless wouldn’t it be easier for thieves to sell goods, if people who bought stolen goods could keep them so long as they bought in good faith and for value? If this consideration outweighs others, we may lay down a precedent that as between an innocent purchaser for value of stolen goods, the original owner gets the goods back.

On the other hand, if we decide for Smith are we discouraging market transactions by creating uncertainty about whether you as purchaser ever have good title or not? You may have an interest in getting your stolen goods back, but you also have an interest in being able to sell and buy goods. Even when you take a reasonable degree of care in buying stuff, do you want to live in a situation where those goods could be taken from you because they were in fact stolen? This might create difficulties in selling and buying even when the goods are not stolen because purchasers must take extraordinary precaution, or are scared off by any transaction where the seller cannot conclusively prove title?

There does not seem to be an obvious answer as to which value outweighs the other. Perhaps a court may still lay down a precedent that weakens both social policies and says that between two innocent parties both should suffer the loss equally?

The point is that once an answer is given by the court one way or the other, we are in a better position to tell Smith and Jones what the law on this subject might be. If the law is fairly clear and settled that the original owner gets the goods, then Jane’s lawyer can simply write a letter to Jones saying that, “Smith is legally entitled to the goods, please hand them over.” Mr. Jones then might take this letter to his lawyer and that lawyer might say the same thing. You have to return the tractor. If you do not, Smith can go to court and she will win and you will not only have to return the tractor you will have the court award costs against you.

This is what would happen if the law was indeed settled. However, as we will soon see, the law is often not settled. While many cases are litigated over disputed issues of fact, there are still significant numbers of cases where the litigation involves disputed issues as to the meaning and application of legal norms.

VII. COMMON LAW LEGAL SYSTEMS

Before we look more particularly at the making of precedent and how past precedent is used in current problem cases, we need to step back and look more generally at the formal legal system. In a common law legal system, the decisions of the courts are authoritative sources of law, just as legislation is an obviously authoritative source of law. The idea that judicial decisions are authoritative, as opposed to simply interpretative or illustrative, is a key feature of the Common Law legal system.

While we are barely scratching the surface here, let’s just say that we can roughly divide many of the national legal systems of the world into common law legal systems, civil law legal systems, customary or religious legal systems, or mixed legal systems. Our own province of Quebec is a mixed legal system, combining federal common law concepts and methodology with provincial civil law traditions.

Today, I only want to make a few remarks about our Common Law system in contrast to the Civil Law system. Many more countries have Civil Law legal systems than Common Law legal systems, and despite the global power of the United States, which has a Common Law legal system, international law and international courts tend to operate with civil law system methodologies. Without any attempt to be comprehensive, here are just a few points as to the difference between the systems, although one might argue that the systems are often more alike in operation than they are different.

The first difference deals with the substance of the rules and principles and procedures of these two legal systems. Even if there are variations in details from jurisdiction to jurisdiction, we may assume that the legal norms that apply to our situation of who gets the property, as between the innocent purchaser for value of stolen goods or the original innocent owner, the legal rules dealing with this problem would probably be much the same in England, New Zealand, Australia, Canada (outside Quebec), and United States (outside Louisiana). Without dealing with exceptions arising from the Sale of Goods Act, my prediction would be that in these common law jurisdictions, Jane does have the right to get her lawnmower back, based on past precedents that have followed a rule expressed as a Latin maxim: “Nemo dat quod non habet” -You cannot give a better title than you have.

So now that we are in law school, we start to look at property, not as a physical object, but rather as a bunch of metaphysical legal rights, “like a bunch of sticks” that are related to that object. Someone may have the stick of ownership, even if someone else has possession of the property. By theft, the Rogue never acquired the stick of ownership in the property and could not pass that stick to Jones, however innocent Jones may be.

Now it may be that the answer to this question is the same in a civil law jurisdiction, like Germany, France or Italy. I do not know. But the point is that it could be different, or that the result is the same, but arrived at by different concepts, because the historic roots of civil law jurisprudence are found in ancient Roman Law, while the common law system, for historical reasons that Prof. Edwards will cover, arose from the various decisions made by the royal courts of England. So, the substantive legal concepts developed out of Roman law may be different from those that arose out of English law.

There are many historical accounts of the development of the Civil Law system that you can find in the library. There is a story about how the customary law of tribal groups developed and interacted with the canon law of the church and then how classic Roman law, as compiled under Justinian in the 6th century was rediscovered in the 11th century and studied in various medieval universities, and how various towering legal minds created glosses and commentaries on this Roman law. The point is that eventually this Roman law as developed through intellectual theory heavily influenced by Christian and Greek philosophy was actually received and enforced as the official private law of various European jurisdictions and territories.

Even though Roman law and Canon law no doubt also influenced the development of English law, no such formal reception of Roman law as a developed system of thought ever occurred in England. What then might we mean by the common law of England? In one sense like the phrase, "we have this in common" we might mean by common law, the law that is common to the whole as opposed to the law that is special to a particular part of society. One idea is that the common law of England arose out of the common customs of the people. So when we talked earlier of creating a precedent by looking at the social policy implications of our choice we were not really replicating the original development of the common law. Instead of imposing some rules that the judges thought were the best, we have this idea that when the judges of the royal courts were developing the common law they turned to those norms that were the common customs of the country, rather than to those norms that were only local customs.

Another reason that the system is called a common law system is that we had the growth of a centralized judicial system emerging through the royal courts in London, developing a law that was common in the sense that it applied to the whole country, as opposed to the judicial system that was local. The expression “common law system” means that even though the system eventually took over a great deal of the jurisdiction exercised by the ecclesiastical courts, the law merchant, the manor courts, and the local courts, etc, the triumph of the common law courts took a long time, and the expression “common law system” was used because there were also other legal systems that existed along with it.

Instead of receiving a highly developed theory of law, English royal courts slowly developed a body of jurisprudence based on common custom and reason. Probably the judges did not think of themselves as making law, but rather they thought they were declaring a law that existed as right reason. The idea that the past cases are actually authoritative, rather than illustrative, really comes rather late in the development of the common law, namely in the 19th century when strict doctrines of precedent are developed.

Remember that when the Norman Kings, like Henry II (1154-89) started delegated royal power to men who sat in the Curia Regis (council of King’s Advisors) to travel the country and hear and decide legal cases and also to deliberate in Westminster Hall where various royal courts were established, there was no parliament as we think of it today. If the judges were making law, the legitimacy of this law resided in the concept of royal authority. The judges may have looked to common custom, but in any event, this is the law of the King. Centuries of struggle between Barons and Earls and Kings and then common folk would take place before we developed the ideas of supremacy of parliament and the independence of the judiciary. The notion that judges make law is problematic because it is not grounded in democratic legitimacy. But this problem only arises when we believe that democracy, rather than right reason or royal authority, is the ground for law making.

Now another development that usually, but not always, exists between Civil Law and Common Law legal systems is that at a more recent stage Civil Law countries generally are known to have codified systems of law. In theory this means that all of the law can be found in legislated form, even if it is sometimes stated in general language and one must refer to commentary and case law for interpretative guidance as to details. This is to say, that in a Civil Law country I might point to a big book -the Code of Civil Law- and say that here is the law of contracts, and torts, and property and fiduciary obligations and so forth. Codes can be more general or more specific and of course I will need to refer to how the courts of the jurisdiction apply and interpret the Code in particular cases. But the point is that the court cases are illustrative of the law but are not themselves the law. The law is found in the code.

But in a common law legal system I point to a vast library with thousands of law reports, and I say that much of our law is not codified at all; it is case law, not legislation. We have law that binds us that has never been passed into law by a democratically elected legislature but has been made by the judges through time in the process of deciding individual cases. This law continues to be created and changed by judges today.

Finally, another difference between Civil Law and Common Law systems involves not the differing product of the system in terms of rules and principles, but rather the different process of reasoning. We talk about a common law and a civil law methodology. Notice that in a Civil Law jurisdiction, legal reasoning tends to be more deductive. That is, we think downwards from existing general principles of law to apply them to the facts of our case. In a common law system, legal reasoning is often inductive. That is, we think upwards, and try to formulate a more general rule by analogy from specific cases.

Common law v. Equity

Now that we have noted that the term “common law” is applied to our whole legal system in distinction to other systems, recall that sometimes the term “common law” is used within our system to describe a kind of law, namely case law, in distinction to legislation. We should note briefly here, (and Prof. Edwards will give you the details in the legal history portion of this course) that sometimes common law is also used in distinction to another body of legal rules and doctrines within our system called equity.

The development of the common law as a royal system of dispute resolution was heavily influenced by procedural formalities like the forms of action. If you wanted to have your case heard in the King’s court, you (plaintiff) had to get (and pay for) a writ from the King’s Chancery that would command the defendant to appear before the court to explain why the violence of the King should not be invoked against him to return property to the plaintiff or pay damages to the plaintiff or whatever. If you were a defendant, you can imagine having a sheriff ride up to your dwelling and deliver a parchment, written and sealed in the name of the King, demanding that you deliver property to plaintiff or claiming money damages for a wrong you have done, and if you don’t defend yourself in court the King’s violence will enforce the writ. In early times you might have trial by ordeal or by battle before some early form of the jury system developed.

Various writs were developed dealing with particular sorts of cases and eventually if you could not fit your claim into an existing writ you could not get your case heard by the royal courts. Unless your case fit into an existing form of action you were out of luck. Thus, the substance of the common law in terms of causes of action developed around these arcane distinctions between various available writs.

Eventually, due to the rigidity of the common law, both procedurally and substantively, people appealed directly to the Chancellor who claimed jurisdiction to hear cases informally, without writs and formal causes of action. The Chancellor exercised equitable jurisdiction, and as the term equity implies, his decisions were not based on formal rules of law but rather on doing justice in each case according to what he thought was the right and fair thing to do. As these equitable cases piled up and various Chancellors used their discretion in inconsistent manner, equity itself over the centuries became another formal system alongside the common law, with equitable precedents and procedures every bit as daunting as the common law. Indeed, the system of equity, while providing the law with many important legal doctrines like trusts and specific performance and so forth, ended up with worse defects in terms of expense, delay, and despair than the system that it was supposed to remedy. Courts of equity existed alongside courts of law until they were fused in 1875.

After the break, we will talk about reasoning with case law in our Common Law system.

XIII. THE MYTH OF A JUDICIALLY CENTRED LEGAL SYSTEM

The focus of this legal system course, partly governed by the very limited time available for it in the curriculum, will be on topics closely related to courts and the judiciary. -Reasoning with precedent cases and interpreting statutes; the judicial process in terms of fact finding, the role of juries in the judicial system, alternative dispute resolution, the independence and accountability of the judiciary; and various jurisprudential theories about the proper role of the judiciary. I think these are all very important aspects of understanding the legal system, but it should be noted that this judicial focus is also very limited, and an understanding of the legal system ideally would encompass many more topics.

By way of conclusion to these introductory remarks, (and a sincere congratulations to you for reading this far), I will only briefly mention one of many legal institutions, processes, actors, and contexts that are missing from the picture when we focus on the judiciary. I regret that we will not spend time on the legal profession and the law office as a crucial part of the legal system. Much more law is applied and made in the law office as compared to court. Many, if not most, lawyers never see the inside of a courtroom after their call to the bar, and even the call to the bar may take place outside of a courtroom (in a concert hall or a church or whatever). What are these lawyers doing?

Preventive Law and Transactional Law
I would point out that lawyers play a very big part in our society in the prevention of disputes in the first place. We have the whole field of law that we call preventive law and planning law and transactional law. Lawyers are engaged in transactions. This part of lawyering, involving the prevention of disputes in the first place, is seldom visible to the public, but in fact amounts to the bulk of what lawyers do. Most lawyers are not litigators, because their work involves other kinds of lawyer transactions that have to do with what I call the non adversarial legal process. The goal of the lawyer is to solve problems, not win cases. The goal of the lawyer is to find consensus and to create channels of cooperation.
How do lawyers prevent disputes? People want to engage in various activities. They want to go into business with other people and form a partnership or corporation, or they want to buy or sell some property, or make a will or trust in the event of their death, or they want to adopt a child or change their name, or whatever. Or people are already engaged in some enterprise and a host of issues arise about how the enterprise can proceed in terms of environmental impact, or zoning, or labour legislation, or regulatory compliance, or whatever. Not only do private institutions and individuals want to do things, but there are a host of public institutions and agencies that want to do things as well- government boards and tribunals and departments. All of these transactions and enterprises, whether public or private, involve law and lawyers working in law offices. Lawyers channel activities through law in a way that prevents disputes from arising about these activities.
Problem solving in the law office involves counselling clients. We try to understand the goals, values and aspirations of the client and we work with the client to identify the various legal options that are available to reach the goal in question, and then we help actualize the option that the client has chosen. We may need to negotiate with other parties, or draft legal documents, or channel a matter through regulatory agencies and so forth.
Now one fundamental fact about all of these matters which I am calling preventive law and non adversarial legal process, is the distinction between disputes about something that has happened in the past, (a statute has come into force and now someone says it is unconstitutional, a crime has allegedly been committed and someone is charged with doing it, a contract has allegedly not been fulfilled, someone was injured by someone else and now claims compensation and so forth), versus activity by lawyers in structuring things to happen in the future. For disputes involving stuff that has happened, we talk about the role of law, lawyers, and the legal system as a system of dispute resolution, but for the facilitation of action to be taken or action that is not allowed to be taken, we talk about the role of law, lawyers, and the legal system in dispute prevention.
Now when we think about these forward-looking activities, which I call the non adversarial legal system, where future activity is only in contemplation, rather than already completed, we must still acknowledge that we are often dealing with conflicting interests. Having conflicting interests is not the same thing as having a dispute. The presence of conflicting interests does not mean that we have to adopt an adversarial stance of maximizing one interest to the exclusion of others rather than trying to harmonize all the interests. Lawyers want to be deal makers, not deal breakers.
It should also be noted that the role of lawyers includes the prevention, not just of disputes, but the prevention of illegality. Lawyers do not just tell clients what the law requires, and of course we acknowledge that good faith arguments can be made as to what the law requires, but in any event, lawyers also prevent illegality by refusing to do what is clearly illegal to do. It is fundamental to the legal profession to be reminded in day one at law school that we do not just represent clients, we also represent the law and have a higher duty to the law. (I have argued elsewhere that this duty to the law may not be absolute in some contexts of extreme injustice, and that even lawyers may in some circumstances engage in a kind of civil disobedience, but this is topic that would require a lengthy debate and defence.) For now, let’s say that the job of the lawyer is to apply the law in the law office. When your client wants to do something that is illegal you must refuse to assist him or her. The legal profession has been entrusted by the public with the task of upholding and improving the law and the justice system, not with the task of helping clients to break the law and evade the law and destroy the spirit of the law. Your client may be the one who is paying you money, but he or she is not the party that grants you the license to practice law. You are an officer of the court first, and then only secondarily, do you represent particular clients. Lawyers who assist their clients in breaking the law not only break their professional trust, but they are also subject to disbarment and often end up in a jail cell along with their clients.
Finally, when we talk about channeling activities through law as a way of preventing disputes, we do not just mean dealing with the law that already exists like the land titles systems, but we also mean that law is made by lawyers right in the law office. There is a pre-existing law about contracts, but the actual contract as a body of legal rules in a particular case is something that we actually draw up. The act of formalizing a relationship into rules and principles of law as drawn up in the law office prevents future disputes just as much if not more so than the application of legislation and case law to the activity in question.
To say that lawyers are involved in peacemaking by preventing disputes in the first place through giving legal advice and channelling activities through law seems like a good theory. The problem is that legal services are not distributed equitably in our legal system. Many people cannot afford to have their disputes litigated in court, much less to have good legal advice to prevent disputes or better their lives. Across the country we have witnessed the gutting of legal aid. The majority of lawyers spend their lives working for the rich and powerful individuals, corporations and interest groups. Furthermore, we have already seen that law is not a simple system of pre-existing rules, but rather law is malleable and is manipulated to serve some interests at the expense of other interests. Is our law just? Is our legal system just? Whose interests does it serve?