Brave New Courts and LawyersMaimon Schwarzschild

Gordon Brown's new government in England announced last week that British barristers will no longer wear wigs and robes in court, and judges will no longer wear wigs.  Judges will exchange their traditional British robes for a "Continental-style gown".

Ostensibly, traditional wigs and gowns will continue in some criminal cases for "security" reasons, i.e. to make judges and lawyers less identifiable.  But this is so ludicrous that it won't last, and I'm quite sure it's not intended to.  If what you really want is to disguise judges and lawyers, you'd do better with a paper bag.

Wigs and gowns might seem quaint to foreigners, but to English people they represent judicial independence, and the professional independence of the Bar.  They are also symbols of older values and an upper class or upper middle class style, to be sure: which is one reason why abolishing them is a gesture to the Labour Left.  Gordon Brown is busy making many such gestures, or changes in policy: hence the appointment of the vehemently anti-American Malloch Brown to a senior foreign policy post.

But it seems to me that there is more to it than that.  Judicial independence, and a proud and professionally independent Bar, are at odds with the idea of an all-controlling (or as-much-as-possible controlling) bureaucratic nanny state.  And such a nanny state has been the drift of the Labour government in Britain - as it might well be the drift of a Democratic government in the US.

Last week brought this example - by no means unique - of Britain's nanny state in action:

A couple whose two baby daughters were taken away by social services have been told that they will never see their children again, despite being cleared of abuse allegations.

One of the girls was taken away shortly before her second birthday, the other removed only hours after being born.

Social workers have told the parents that the girls, now aged one and three, will not be returned because they have settled with a childless couple who want to adopt them...

The father, a 32-year-old caretaker, says the family has been treated as "adoption fodder" to satisfy government targets. The case raises fresh questions about the financial incentives offered to councils which increase adoptions, and about the level of secrecy surrounding family court hearings.

In 2000, Tony Blair set a target for a 50 per cent increase in adoptions nationwide to reduce the time children spend in foster care. Councils were offered cash bonuses totalling £36 million for hitting their goals.

Read the whole, horrifying thing.

The parents' lawyers have warned them, apparently, that their chances in court of getting their children back are "very slim".  I suspect that's right.  The British courts are ever more deferential to the government and to the social service bureaucracy.

Social services, in turn, are deeply imbued in Britain with the feminist, and of course bureaucratically self-serving, idea that "abuse" is rampant; that families are not to be trusted; and that social services themselves should have the decisive say over children's upbringing.  There is the extra, characteristic note of corruption here that the bureaucracy gets cash bonuses for more adoptions.

Judicial independence, and an independent-minded legal profession, might be at least some safeguard against this sort of thing.  Abolishing wigs and gowns in England - improbable as it might seem - is a deliberate step away from any such independence.

Comments

[dearieme]

Spot on.

[km]

It might be a good thing for these bureaucrats that the UK doesn't have a version of our Second Amendment.

[Bill W.]

"Judicial independence, and an independent-minded legal profession, might be at least some safeguard against this sort of thing."

Obviously not, unless British judicial independence, to the extent it ever really existed, disappeared long before wig and gown.

The fact is, the judiciary is merely a branch of government, and a highly unaccountable one at that. Its "independence" is viewed by those inside its institutional walls merely as a safeguard against encroachments on its prerogatives by the political branches, not as a weapon with which to protect civil society. (It is a bit like the modern concept of academic freedom that way.) The "independent-minded legal profession" sanctimoniously feathers its own nest, prospering at the expense of the productive classes with each increase in judicial authority over a formerly private sphere. Anyone who expects the judiciary or the legal profession, American or British, to protect the "rights" of ordinary private citizens from the helping professionals of the metastasizing nanny state is either hopelessly naive or disingenuous.

Reducing the power of the formal law and its institutional handmaidens, the courts and the lawyers, is the only way to make a difference in cases like this. I'm not holding my breath.

[Bill W.]

"Judicial independence, and an independent-minded legal profession, might be at least some safeguard against this sort of thing."

Obviously not, unless British judicial independence, to the extent it ever really existed, disappeared long before wig and gown.

The fact is, the judiciary is merely a branch of government, and a highly unaccountable one at that. Its "independence" is viewed by those inside its institutional walls merely as a safeguard against encroachments on its prerogatives by the political branches, not as a weapon with which to protect civil society. (It is a bit like the modern concept of academic freedom that way.) The "independent-minded legal profession" sanctimoniously feathers its own nest, prospering at the expense of the productive classes with each increase in judicial authority over a formerly private sphere. Anyone who expects the judiciary or the legal profession, American or British, to protect the "rights" of ordinary private citizens from the helping professionals of the metastasizing nanny state is either hopelessly naive or disingenuous.

Reducing the power of the formal law and its institutional handmaidens, the courts and the lawyers, is the only way to make a difference in cases like this. I'm not holding my breath.