In Utopia, Sir Thomas More sums up the entire legal manifesto of the Utopian people in the following two paragraphs:
“They have very have very few laws, because, with their social system, very few laws are required. Indeed, one of their great complaints against other countries is that, although they’ve already got books and books of laws and interpretations of laws, they never seem to have enough. For according to the Utopians, it’s quite unjust for anyone to be bound by a legal code which is too long for an ordinary person to read right through, or too difficult for him to understand. What’s more, they have no barristers to be over-ingenious about individual cases and points of law. They think it better for each man to plead his own cause, and tell the judge the same story as he’d otherwise tell his lawyer. Under such conditions, the point at issue is less likely to be obscured, and it’s easier to get at the truth — for, if nobody’s telling the sort of lies that one learns from lawyers, the judge can apply all his shrewdness to weighing the facts of the case, and protecting simple-minded characters against the unscrupulous attacks of clever ones.
This arrangement wouldn’t work very well in other countries, because there’s such a mass of complicated legislation to deal with. But in Utopia, everyone’s a legal expert, for the simple reason that there are, as I said, very few laws, and the crudest interpretation is always assumed to be the right one. They say the only purpose of a law is to remind people what they ought to do, so the more ingenious the interpretation, the less effective the law, since proportionately few people will understand it — whereas the simple and obvious meaning stares everyone in the face.”1
The language is unequivocal in setting out the principles and issues which More grapples with, but they can be distilled and paired with their modern equivalents as follows:
The Utopian approach to these issues is clearly an extreme one, and cannot be viewed as authority for More’s own views. The third-person, satirical nature of Utopia is broad evidence that the contents of More’s writing does not necessarily convey what he actually thought. Indeed, professionally, he was one of those “over-ingenious” barristers himself — and a very accomplished one at that. However, the issues are important ones, which have enduring (if not greater) relevance 500 years on since the publication of Utopia. They merit consideration, which we turn to do now.
Legal accessibility is the king-pin of this discussion, and we will return to it frequently. Tom Bingham provides a sound definition of legal accessibility: “The law must be accessible and so far as possible, intelligible, clear and predictable.” His tripartite rational is equally sound: 1) people must be able to know what it is they mustn’t do so as to avoid criminal sanction; 2) similarly, we ought to know what rights and obligations we have in relation to others; and 3) successful trade and business is encouraged when people appreciate that there is a legal framework to back them up2.
The Companies Act 2006, passed with the intent to reform and streamline company law, consists of some 1300 sections, spanning 700 pages. Suffice it to say, it is a complicated piece of legislation, which the Utopians would no doubt shake their heads at. Their main concern with it would be on the point of legal accessibility — nobody could possibly digest and comprehend all of it. But outside of that difficulty, I submit that there is no inherent problem with statutory complexity. Indeed, the subject matter itself may be complicated (as with company law), and therefore will necessitate comprehensive legislative treatment. Where the subject matter is less complicated, like in the case of murder, as little as no statutory treatment might be called for. It’s true that complicated statute increases the cost of drafting and application, but once again, that is most always justified by the subject matter which the legislation is designed to target. So then, subject to a balancing act between accessibility and technical thoroughness, complex legislation is not the inherent evil Utopians view it as. Parliamentary draftsmen can breath a sigh of relief. But, even if they take it too far, the Utopians still have a point — the afore mentioned balancing act should be biased to favour the most accessibility possible, only deviating from that principle when the technicalities call for it.
A barrister’s salary can vary from £25,000 to well in excess of £1,000,0003. This is for a reason — the range in the quality of advocate a defendant or litigant can choose to employ, funds permitting, is vast. The more experienced and supported the advocate, the better the case will be put to the court, and the more likely their client will be to succeed. On a Utopian analysis, this is unfair. That is a defensible position, but does their approach, wherein only self-representation is permitted, actually solve the problem? I submit that it does not. Courts in an adversarial jurisdiction ought to be concerned by the factual and legal issues alone. They should not be expected, nor are they necessarily equipped, to draw out the legal arguments themselves. In short, the case must be put to them. Furthermore, that problem aside, allowing self-representation does not necessarily alleviate the unfairness suffered by an inexperienced party — in fact, it may even make it more acute. For example, in a case of fraud, the upstanding citizen who has never been before a court would be less experienced in how best to present their case than the serial-swindler who has already spent considerable time before the bench. In sum, certain people are better equipped to put a case than others, and they may hire out those services as professional barristers. There is no inherent problem with that. But, as acknowledged, the issue of disparity in the quality of advocacy is a real one. Rather than doing away with professional advocacy though, we should focus on ways to close that gap. Most obviously, Lord Wilson suggests a shoring up of the important system of legal aid in order to ensure that the fundamental requirement of legal accessibility is not undermined4.
On the Utopian view, when the law is kept simple, “the simple and obvious meaning stares everyone in the face.” Statutory interpretation as we know it would therefore be irrelevant. There should, in theory, be little debate or question as to what the law means. This would be a tremendous boon to legal certainty; it would directly reinforce our guiding fundamental, legal accessibility. But regrettably, this is not the case— there will always be someone to make a different argument about interpretation which would benefit them more. Even if the meaning is obvious, interpretation will still be an issue at point. Furthermore, while the uncertainty of interpretation can undermine legal accessibility, it can also provide reinforcement to the rule of law as a whole. This is exemplified in countless decisions which all hinge on broad, generous or creative interpretation of legislation by the courts. This was demonstrated in Pierson, particularly by Lord Steyn’s insistence that “Parliament does not legislate in a vacuum. Parliament legislates for a European liberal democracy founded on the principles and traditions of the common law.” Creativity of interpretation was displayed in Anisminic to avoid a clear and unequivocal ouster clause, thereby allowing the court to impose judicial review.
In summary, interpretation is not made irrelevant by legislative simplicity, and while Anisminic vindicates the Utopian view that “the more ingenious the interpretation, the less effective the law”, that may be highly desirable when the law in question is highly undesirable.
Rather than summarise the above, by way of conclusion I rely on More’s own reflections on Utopian society:
“The laws and customs of this country seemed to me in many cases perfectly ridiculous… But I freely admit that there are many features of the Utopian Republic which I should like — though I hardly expect — to see adopted in Europe.”