Why Can’t Kevin Rudd Make Proper Legal Policy?

Universities are supposed to research and teach the truth, but law schools in common law countries – Britain and its former colonies – are apparently exempt.

For the two centuries of their existence, law schools have generally adhered to legal positivism. That is, they teach only what the law IS, without drawing any conclusions about its essential justness or merit. The consequences are profound:

  • Lawyers, including judges, law reform commissioners, legal bureaucrats, and academics themselves, know little or nothing about great swatches of their trade: the meaning of justice, where the legal system came from; how its origins largely determined what is wrong with it, or the remedy.
  • Legal commentators and the media generally cannot adequately report and analyse the law; doctors, manufacturers and people in business cannot know why litigation is unfair and costly, and citizens are baffled when obviously guilty criminals escape justice.

The result of this general lack of knowledge is that Governments responsible for legal systems affecting 1.6 billion people cannot properly formulate legal policy.

The following observations serve to close a few of the gaps left by academic ostrich-ism and lack of rigour.


In Justice in the 21st Century (Cavendish 2000), former Justice Russell Fox says justice means fairness; fairness to all requires a search for the truth; truth means reality; and the search for truth gives a system its “moral face, as distinct from one where the winner is the person with the greatest resources and best advocacy”

The common law does not search for the truth. It thus has problems of reality, fairness, morality, and justice. As Sydney jurist Richard Ackland observes, the law is a parallel universe, akin to Alice’s Wonderland.

Origins of the common law

The common law began in the second half of the 12th century in a culture of total corruption: every public office, from Chancellor down, was for sale, and buyers in turn extorted bribes from people who dealt with the offices.

Today’s common law is basically the product of three circumstances.

1. The lawyer-judge cartel. Members of a business cartel, e.g. Richard Pratt’s cardboard box cartel, collude to increase their cash flow. Similarly, as Richard Posner, a Chicago economist and appellate judge notes in his book, Overcoming Law (Harvard, 1995) the legal profession has always been a cartel of lawyers and judges.

2. Truth does not matter. Roman law was based on truth, but in the Dark Ages after the fall of the Empire in 476, England and West Europe reverted to mumbo-jumbo: an anti-truth accusatorial (Prove it!) system of trial by ordeal and verdict by unknown god.

European countries changed to a pro-truth system after a church-state conference in Rome in November 1215, but in 1219 the cartel decided to reject that system and to persist with the accusatorial system, minus the ordeal and with an inscrutable jury instead of an inscrutable deity.

3. The adversary system. A US lawyer, Charles P. Curtis, observed in The Ethics of Advocacy (1951): ” … one of the functions of a [trial] lawyer is to lie for his client … He is required to make statements as well as arguments which he does not believe in.” The adversary system is accurately termed the absurdity system. It is a version of the accusatorial system in which trial lawyers control the evidence, and hence the process, and hence the money. Trial lawyers who have become untrained judges control the courtroom, but are otherwise passive and know only such facts as the lawyers choose to put before the court. Judges began to let trial lawyers take control of civil evidence about 1460. Lawyers did not then defend criminals; there was no money in it.


The Chancery Court, in which the Chancellor was the sole judge, heard cases of disputed wills. Lawyers were paid from the deceased estates. From about 1650, Chancery judges colluded with lawyers to keep 99 per cent of will cases going for decades. In Jennens v Jennens (1798-1915), 32 successive Chancellors allowed generations of lawyers to “devour” an entire estate of £500 million at today’s values.

The complete adversary system

The rise of blue collar organised crime in the 18th century persuaded lawyers to defend criminals. They got final control of the criminal process 200 years ago.
Since then, judges have invented another dozen anti-truth devices which bias the process in favour of criminals and their lawyers, and against victims, police, prosecutors, and the community. In the civil cases of negligence and libel, a bias in favour of plaintiffs encourages people to sue.

The investigative [inquisitorial] system now affects more than 1.6 billion in European countries, their former colonies, and other countries, including Japan. It requires more trained judges than the adversary system, and fewer lawyers. In criminal cases, 99 of 100 accused are actually guilty. The investigative system convicts 95; the adversary system fewer than 50, and at a higher cost. A civil hearing in the investigative system takes a total of about a day. In the adversary system, it can take weeks, months or years.

The remedy

Russell Fox QC wrote: “… the public estimate must be correct, that justice marches with the truth.”

Reversal of the 1219 decision will thus be welcomed by 99.8 per cent of the population, and by lawyers and judges who believe that law should be about justice. Once truth is accepted as the basis of justice, everything falls into place. The cartel and the adversary system can be abolished by:

  • Training judges separately from lawyers, as they do in Europe.
  • Giving judges back control of the process.
  • Having the trained judges search for the truth unhampered by six rules for concealing evidence and 14 other anti-truth devices.


For the sake of symmetry, the Australian Government should plan to change to a truth-based system of justice by November 2015, or by 2019 at the latest. Is Kevin Rudd ready to take up the challenge?

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