LECTURES - College of Social Sciences and International Studies ...

The Lion and the Ox
tered^in finding lawyers who are prepared—or indeed financially
able—to work for contingent fees on human rights
issues. 29 It may be for this reason, rather than as a reflection
of the real incidence of Convention issues, that criminal law,
where legal aid remains available as of right, will initially at
least become the arena of the most numerous human rights
arguments.
Why should any of this matter? Why is the market in litigation
not itself a sufficient indicator of need? Law-and-economics
theory, at least in its early versions, might well claim that it
is. 30 Communitarian theories, on the other hand, begin by positing
fairness in the distribution of individual rights or freedoms
as the essence of justice. To speak of justice, of course, is not
necessarily to speak of law: the judicial job is to achieve the one
in applying the other, but the rigidity of law and the elusiveness
of justice continually conspire to keep the two things in tension.
If, as I have argued, there is frequently no single just outcome to
a particular conflict, justice itself requires the possibility of nonconfrontational
forms of conflict resolution; and the courts
themselves are starting to recognise and promote mediation
as a sometimes better route to justice. But to the extent that
courts of law, with their confrontational processes, remain the
forum in which justice is ordinarily sought, it is (or so it seems
to me) from a common ethical sense rather than from any
prescriptive or functional source that justice as a value embodying
fairness and equity has to be derived. Neither Rawls 31 nor
Dworkin 32 can prove why it is justice in this sense that matters;
nor need they so long as we endorse the moral sensibility
which says that it does. It is perhaps significant that in an era
when equality in other fields has either imploded or been
exploded as a guiding ideal, equality before the law remains
an uncontested good and an unchallenged right. Is there in the
end an element of human sensibility which, because it is as
much aesthetic as it is moral, is unsatisfied with an outcome
loaded by extraneous factors which skew the creative acts of
debate and judgment by which justice is done and displayed? 33
Whatever the reason, we continue to want the forensic playing
field to be level.
29 See (at the time of writing) Modernising Justice: the Government's plans for
reforming legal services and the courts (Cm. 4155, December 1998), ch. 3.
30 See A. Ogus, "Law and Economics from the Perspective of Law" in P. Newman
ed., The New Palgrave Dictionary of Law and Economics (1998), Vol. 1, p. 486.
31 John Rawls, A Theory of Justice (1971).
32 Ronald Dworkin, Taking Rights Seriously (1977).
33 Perhaps the title of Geoffrey Robertson's book, The Justice Game (1998), gives
the clue.
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