Don’t let the experts run our lives
For the sake of argument
RODERICK HAIG-BROWN WARNS
A popular, and proportionately empty, remark of these days is that “our civilization is becoming increasingly complex." An obvious deduction, far too readily accepted by far too many people, is that it can only be managed by specialists. A natural consequence is that the great and timid majority of citizens, which is never especially anxious to take part in affairs, happily withdraws still further from any burden of responsibility behind the sheltering skirts of the specialist. f have put an expert on the job, goes the theory, so my conscience is clear. This is the ultimate abdication.
Near the nightmares of Orwell
It would be foolish to suggest that the specialist is not a very necessary and valuable person in any civilization. But his skills and learning are no substitute for ordinary human thought. The only purpose of civilization is to serve and advance humanity; if it does not do this it is meaningless. The specialist or expert in most fields is an individual who has been deliberately narrowed and dehumanized by his training and skills to serve one particular purpose. As a result he may do very good work in his special field, better than any layman could possibly do. But his work is of real value only when it has been fitted to human needs by ordinary human thinking. Interpretation and refinement for human use must be the function of the informed, but unfettered, lay mind. Whenever it is not, the nightmares of Wells, Huxley and Orwell come much too close for comfort or safety.
With every added success of the specialist mind, understanding and interpretation become more difficult. Robert Oppenheimer was quoted recently to the effect that “the incommunicability of special-
ists will increase and will soon reach the point where almost nothing of general value can be communicated by a specialist about his subject, cither to a non-specialist or to a specialist in another field.” Perhaps this is the final remission the faint-hearted have been waiting for—the signal that w’c must surrender our bodies to the doctors, our minds to the psychiatrists, our morals to the clergy, our present to the politicians and our future to the physicists. If so, I, for one, am not ready for the signal.
One of the oldest and most sinister encroachments of the specialized mind has been in the field of law, both criminal and civil. Civil law long ago reached a complexity beyond the comprehension of the lay mind; there is abstract justice in it, no doubt, and abundance of legal logic. But few of us can assess the merits or otherwise of our civil causes. Fewer still can anticipate the delays and costs that may lie between us and a just settlement of those causes. Our instinct is to stay clear of the civil courts even when it means accepting quite substantial damage. Perhaps this is a good thing. A nation of hasty litigants is not a pleasant prospect.
But criminal law is something else again; here simplicity is a precious heritage, essential to human freedom. Yet this is another field that some timid observers would be only too happy to turn over to the specialists.
One form of the attack comes in criticism of the jury system. Every so often one sees the impatient suggestion that juries should be done away with—justice is too important, too complicated and difficult for the intervention of untrained minds. Let trained judges, a committee of them if necessary, make all the decisions without the aid — or interference — of laymen. It seems hardly necessary to say that the continued on page 39
continued on page 39
WELL KNOWN AS A B.C. AUTHOR AND NATURALIST. HAIG-BROWN IS ALSO A STIPENDIARY MAGISTRATE AND JUDGE AT CAMPBELL RIVER.
For the sake of argument continued from page 6
“Juries have done more to put humanity into the law and keep it safe than all the great judges“
tried and tested truth is exactly the opposite—justice is too important and too difficult to be left to specialized minds. Juries do, of course, bring in some bad verdicts. So do learned judges. Juries also bring in deliberately perverse verdicts, which learned judges seldom do. And the perverse verdicts of juries, compounded of common sense and sound human values, have done more to advance law and put humanity into the law and keep the law safe for ordinary people than all the wise judgments of great judges. Without the perversity and obstinacy of juries, we might still be hanging petty thieves. Juries know their times and the morals of their times and the people of their times. The juryman brings a fresh and natural mind into the formality and habit and convenience of the law.
I am not really afraid that we shall lose the jury system; it will outlast my time and, I hope, my children’s time. But comparatively few criminal matters reach juries; the vast majority are settled in simple magistrates’ courts, everyday working courts, where costs are slight, delays are few and the decisions are left to one man sitting alone. These lonely men have great powers: very many of them, in Canada, are laymen—often laymen of great experience in criminalcourt work, but still laymen, not specialists.
It has become quite fashionable recently to attack these lay magistrates’ courts. Lawyers pass resolutions at barassociation meetings; newspapers write thundering editorials; a few, very few, ordinary citizens raise objections to them. The criticisms are much the same as those made of the jury system—justice is too important, the law is too complex and difficult, to be entrusted to the minds of ordinary men. Let us therefore appoint only lawyer magistrates. Then the public conscience can sleep in peace, secure in the knowledge that its responsibilities are in the hands of specialists and experts.
A moment’s thought shows what a dangerous fallacy this is. Just as soon as criminal law becomes too difficult to be understood and administered by the intelligent layman, it is far too difficult for the safety and liberty of the citizen. Criminal law is not now too difficult precisely because parliament always remembers, in framing it, that it is going to be handled largely by juries and lay magistrates. Remove this protection, permit parliament to legislate for minds with legal training, and within a very few years the ordinary citizen would find himself at the mercy of a system completely beyond his comprehension.
Fortunately, there are solid practical difficulties in the way of abolishing lay magistrates in most parts of Canada. The larger centres usually have lawyer magistrates already — good sound men who sit through full working hours and are paid respectable salaries, though usually much less than they could earn in private practice. The rural area and the small community is the usual domain of the lay magistrate. There he holds
court two or three times a week, or as often as needed. He combines the functions of summary-convictions magistrate, extended-jurisdiction magistrate, juvenile judge, family-court judge and often small-debts judge as well. He is available at all hours for bail, remands, complaints, search warrants and other seniijudicial duties. He usually finds himself father confessor and adviser to the considerable section of the community that is afraid of lawyers—and spends a good deal of his time overcoming those fears. And he is paid, if he is lucky, something like seventy-five cents an hour.
The usual proposal is that these anachronistic servants of the public, these dangerous nonspecialists, should be replaced by a system of traveling lawyer magistrates. The suggestion makes some superficial sense—enough, 1 am afraid, to ensure real risk of its eventual adoption, with considerable damage to Canadians generally and special damage to those relatively inarticulate people who now make use of the lay magistrate, in court and out of it.
To give anything approaching similar service, not one but several traveling
courts would be needed: certainly a criminal court, a family court, a juvenile court and a small-debts court. Even with all these there would be serious delays and difficulties, and the traveling courts would have to be backed by some system of judicially emasculated, paper-signing local JPs, available for complaints, warrants, remands and other matters that permit no delay. It would be an expensive system. It might produce, at least temporarily, a better average of mechanical justice. But it would quickly remove justice, and all the machinery of justice, even farther than it already is from the understanding of the ordinary man. It would remove the last obligation the legislators have to be simple and clear in their law-making. And it would finally destroy one of the most precious conceptions of justice—that a man has a right to be judged by other men somewhat like himself, not by minds trained to think in specialized ways remote from everyday experience.
Ideally, justice, and criminal justice especially, should not call for any profound legal thinking. It should not be a matter of mysterious taboos and traditions that can be administered only by a special class like the witch doctors of primitive societies. In a civilized state it should be an affair of logic and good
sense, designed to protect the individual from excesses by the state, the state from excesses by individuals.
A magistrate’s essential duty is to stand impartially between the citizen and the police power of the state. It is his business to interpret and administer the social machine, as expressed in the written law, to individual cases. To do this reasonably well—and it can never be done perfectly —he needs patience, tolerance, humanity, moderate intelligence, fair education and a decent understanding of the nature of human beings and human society. In other words, he needs to be a good ordinary man. not a superman or a very common man or a specialized man.
Now there are plenty of lawyers with all these qualities in full measure, men who could rise above their specialization and do good work on the magistrate’s bench. But none of them is free to give time to rural magistrate’s work as it is today and very few could afford to take on circuit work at the relatively low salaries to be expected. There are many more laymen than lawyers with all the necessary qualities in full measure, men who quickly become sufficiently competent in law to do good work on the magistrate’s bench; generally they have been willing to make themselves available in the smaller communities, in spite of the negligible financial returns and the often unpleasant nature of their duties. By doing so they provide and maintain the all-important balance of the lay mind in the law.
I do not want to suggest that all lay magistrates are good magistrates. Some are very good, most are quite good enough, a few are pretty bad. But I do want to suggest that the run of quality would not be so very different if all magistrates were lawyers; there would be a few very good ones, a great majority of average performers and a few pretty bad ones. The failures of lay magistrates are usually due to disregard or misunderstanding of the law. I believe that lawyer magistrates would be more likely to fail as men, if only because the choice among them would be so limited, and the weaker ones of those who were chosen would be too ready to seek refuge from humanity in the law.
One of the great difficulties facing any magistrate is that of maintaining his own innocence in the face of experience. All too quickly his court room, his procedure, the routine of cases before him, becomes familiar and normal. Without knowing it, he begins to think as the police, the prosecutor and the defense lawyer would like to have him think— as a machine of the law and not as a man. As his experience grows, as familiarity takes ever-stronger hold, he must remind himself that these surroundings, this procedure, all these conventional protections, are unnatural, totally unfamiliar, often grimly confusing to the man before him. He must constantly renew his patience and sympathy for the difficulties of the man accused. And if this is a difficult task for the layman, it must be doubly so for the specialist in law.
Local knowledge, which rufal magistrates are likely to have, is a two-edged sword. During a trial a magistrate must guard himself against it in every possible way. But once the issue of guilt or innocence is decided it can become a very real help in setting a just and humane sentence. In juvenileand family-court work, much of which is best done informally and not in court at all, local knowledge is invaluable. Local knowledge can be replaced or supplemented by reports of probation officers, social workers and child-guidance clinics; but even in provinces where these services are fairly
well developed they would have to be doubled or tripled to give traveling magistrates the same grasp of circumstances that a local man has naturally.
There is no doubt in my mind that the lay magistrate is an essential part of a sound judicial system and no doubt that this part is usually well played at extremely light cost to the state. But at the same time I believe that both federal and provincial governments could do a good deal to improve the system.
It is time. I am sure, to do away with the policeman prosecutor in all but sum-
mary conviction matters, and so far as possible in these too. Policemen are generally fair and skillful prosecutors, but it is not good practice to use them for this; it offends the principle that justice must always be seen to have been done, and it deprives the court of legal assistance to which it is entitled.
Provincial governments, through their attorneys-general, appoint all magistrates. City authorities, naturally, have a major say in appointments within their own boundaries, but in unorganized areas provincial governments have sole authority. While most provinces have grown out of the old system of political appointees, I believe they arc still too careless about appointments. They need to look for a proportion of younger men and they should go to greater lengths to make sure they have found the best available man in each area. They should establish a short course in criminal law and procedure for new magistrates. They should develop a system to keep magistrates informed of important decisions in higher courts and perhaps also of the run of sentences in other courts. They should also improve probation, penal and rehabilitation services—but that is another story.
The federal parliament should do what it failed to do at the last revision of the criminal code — abolish the antiquated costs system by which magistrates are paid (or, more usually, not paid). It should encourage all provincial governments to do the same and to make provision for decent payment on some more rational and respectable basis.
These are all relatively minor matters that would simply improve and strengthen an already sound system. But proper attention to them might do a good deal to attract younger and better men to the bench, while neglect of them is real failure in government.
There is plenty of room for both laymen and lawyers on the magistrate’s bench. But there is no room in any country for a system that excludes the lay mind from its courts of law. Law is not a science, but a mixture of art, science and philosophy, with emphasis on the infinite variations of human behavior, human morality and social needs. It is the direct concern of every ordinary citizen in the land: and the ordinary citizen cannot afford to have himself ruled out of active participation, if