The Law Only Sees What Can Be Charged

Here is the largest fault in any legal system, and it is not corruption, delay, or cost. It is that a legal system can only act on what can be stated as a crime. Whatever cannot be written down as a definite offence, with elements that a prosecutor can list and a court can tick off, does not exist for the law. It is not a lesser crime. It is not a crime at all.

Two Examples

A man spends twenty years destroying his wife's confidence, isolating her from her friends, controlling her money, and making her afraid to speak in her own house. He never hits her. For most of legal history, and in most places still, nothing he did was a crime. There was no offence to charge, because "making a person's life a misery by a thousand small acts" cannot be reduced to elements. Only very recently, and only in a few jurisdictions, has anyone tried to write it down, and the attempts are awkward precisely because the harm resists the form.

At the other end of the scale: a financial institution moves billions through a structure designed so that no single transaction is illegal, the harm is spread across millions of people who each lose a little, and no individual can be shown to have intended any particular outcome. Everyone involved knows what the structure is for. Nobody can be charged, because what it is for is not an offence, only what it does, and what it does is not attributable to anyone.

The small case and the large one fail for the same reason. The harm is real and the crime is absent, because a crime is a harm that has been successfully put into words.

Justice and Law Are Not the Same Thing

We use the words interchangeably and they are not.

Justice is the idea: that harm should be answered, that people should get what they are owed, that the strong should not be able to abuse the weak without consequence. Everyone has a working sense of it. A child has it by the age of five and can tell you when something is unfair.

Law is the machinery built to deliver justice, and like all machinery it can only process inputs of a certain shape. The shape is: a defined offence, a specific defendant, evidence that the elements were met. Anything that does not fit is not rejected by the machine; it is simply not seen. The machine has no error message for "this was terrible but I cannot express it."

The law is supposed to serve justice. In practice, justice is confined to whatever the law has managed to express so far, and the gap between the two is where most real harm lives.

The Profession Widens the Gap

You would expect the legal profession to be the force narrowing this gap: the people whose job is to notice unexpressed harm and find words for it. The opposite happens, and the reason is structural.

As the profession grows more sophisticated, the law grows more technical. Definitions sharpen, precedents accumulate, procedure elaborates. Each step makes the law more precise about what it already covers, and further from anything a layman could recognise as justice. A legal system that only experts can understand has cut itself off from the sense of justice that the experts were supposed to be serving.

The layman knows the twenty-year campaign of cruelty was wrong. The lawyer knows it does not meet the elements of any offence. The more the lawyer knows, the more confidently he can say so, and the further the system drifts from the thing the layman knew.

What Would Narrow It

I do not think the answer is more law. More law is the profession's answer, and it produces more of the same: more precise coverage of the already covered.

The answer, as usual, is education, and I mean something specific by it. If the public understood how the law actually works, that it sees only what has been written down, that the writing is done by people with their own interests, and that justice and law diverge as a matter of course, then two things would follow.

The public could take part in defining new offences, instead of waiting for the profession to get around to it. Emotional abuse got written into law when enough ordinary people insisted that it was a crime, not when lawyers discovered it. That is the mechanism, and it works better when more people know that it is the mechanism.

And the public could see justice being done, or not, rather than accepting a verdict as the definition of what justice was. A system watched by people who know its limits behaves differently from one watched by people who think its output is the truth.

A Note on Juries

This is one reason I am less hostile to juries than most people who have thought about their defects. A jury is twelve people who know nothing about the elements of the offence and everything about whether the man in the dock did something wrong. That is a terrible instrument for applying the law and a fairly good one for keeping the law in contact with justice. Professional judges are the reverse: excellent at the law, and with every year of practice a little further from the thing it was for.

Neither is right. But a system that has chosen the professional over the layman at every point has chosen precision over justice at every point, and should not be surprised when the two come apart.