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Fixing a broken legal system
By Steven Martinovich
You know you're likely in for an interesting time when you pick up a book on legal reform and the author cites Lenny Bruce and the Buddha as his inspirations. Prominent University of Toronto law professor Alan N. Young unfortunately tends more towards Bruce when it comes to tone in Justice Defiled: Perverts, Potheads, Serial Killers and Lawyers, a scathing indictment of the Canadian legal system. As much you may hate lawyers Young, who most recently made the news fighting on behalf of the legalization of marijuana and served as a commentator during the Paul Bernardo trial, assuredly hates them more and isn't afraid to employ strong language to make his dislike felt.
"In a nutshell, I wish to show you that the legal profession is built upon intellectual dishonesty. Put aside the greed and the arrogance, the real sin of lawyering is that is 'full of sound and fury signifying nothing.' It is full of empty Latin maxims. It is full of intellectual shortcuts to save the effete jurist from having to struggle with difficult moral issues. It speaks in a language cold and unfamiliar to those outside the profession, and it relies on thought-terminating clichés and rigid categories dressed up as legal doctrine."
Over the first half of the book Young argues that the state's only mandate when it comes to criminal justice is to protect the rights of the citizenry and maintain infrastructure for orderly relations. Government regulation of interpersonal relations and self-fulfillment are, he writes, are merely attempt at moral hygiene and unacceptable in a free society. For Young that means that the government has no right to stop Canadians from sleeping with whom they want, smoke or consume what they want or stop them reading whatever they care to. Sex, drugs and pornography are a right of citizenship.
If you come from the libertarian or liberal mindset, it's an argument that probably doesn't need to be made and Young doesn't bother much with explaining the philosophy behind it. His focus is the role the legal profession is playing in maintaining the government's role in regulating those aspects of our lives. He accuses lawyers and the judiciary of not having guts or brains enough to break away from precedent and make new social policy. The system, he writes, isn't interested in designing rational policy to deal with a changing society, merely to act as a rubberstamp and perpetuate its own role in regulating interpersonal relations and self-fulfillment.
The legal profession is also failing when it comes to violent crime, he states. By spending so much of its time on what he considers to be relatively harmless crimes, the system is unable to combat violent, predatory criminals. Despite the fact that we prosecute men like Bernardo, convicted of brutally murdering three women, we have little insight into who and what they are. Young admits we aren't likely ever to, but we can at least use the courts to try, perhaps gaining some insights that will help us deal with them in the future. The system is stretched to the limits prosecuting prostitutes, marijuana smokers and others like them and failing to devote enough time to those who present a real danger to Canadian society.
For those not inclined to buy Young's arguments about social policy, the second half of Justice Defiled might be more persuasive. Here he takes direct aim at the legal system and its participants, blasting away at police officers, lawyers and judges alike. His frustration with the system spills over in a passionate denunciation of everything from the plea bargaining system ("a bastardized version of a valid contract"), the judiciary (who have "the illusion of wisdom"), lawyers ("obnoxious children") and even the political correctness gripping law schools. Even when the system isn't prosecuting people for relatively innocuous offences, he argues, its very nature is dehumanizing to everyone involved and often times fails to address serious crimes properly.
It's all quite compelling and Young is right that Parliament should begin to move to limit the Criminal Code to those things that present a danger to Canadians and strip it of what are essentially lifestyle choices. One doesn't have to be a libertarian (or liberal) to recognize that government shouldn't be regulating our lives to the degree that it does. It fosters an atmosphere of dependence, forcing the average Canadian to find satisfaction in a courtroom rather than trying to work things out for themselves. We have constructed a society where lawyers have injected themselves into our relationships with other people, essentially ceding much of our lives to their control.
Yet what hobbles Young in his quest to reform the Canadian legal system might be Young himself. It's sometimes almost impossible to take Justice Defiled seriously given the exceptional amount of vulgarity that he employs to make his point. In fact, Young even tells the reader that his near every page use of profanity is designed to "distance myself from the knowledge elites who will dismiss this book as a poor excuse for academic scholarship." Young will likely remind many of that first year professor who casually swore during the first day in class to show how hip he was and underline his arguments. It's a tactic that might impress a teenager but for someone fighting the important fight that Young is, it turns what is a needed broadside against doddering system into sometimes little more than a bad joke.
If you can overlook Young's rampant profanity and are at least open to the idea that the Criminal Code should only deal with truly serious crimes, Justice Defiled will likely make quite an impact. Many will doubtless look at it as career suicide for Young, unlikely given that he seems to thrive on the disapproval of others, but Justice Defiled should serve more than that. It should be a message to Canadians that the legal system belongs to them and that they have a personal stake in insuring that it represents their vision foremost.
Steven Martinovich is a freelance writer in Sudbury, Ontario, Canada.
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