Lucia Rubinelli, Constituent Power: A History, Cambridge: Cambridge University Press, 2020, x + 255 pp, hb £75.00 Joel Colón‐Ríos, Constituent Power and the Law, Oxford: Oxford University Press, 2020, 352 pp, hb £80.00
Published date | 01 September 2021 |
Author | Pravar Petkar |
Date | 01 September 2021 |
DOI | http://doi.org/10.1111/1468-2230.12622 |
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REVIEWS
Frederick Wilmot-Smith,Equal Justice: Fair Legal Systems in an Unfair World,
Cambridge, Massachusetts: Harvard University Press, 2019, 272pp,hb £31.95
Equal Justice: Fair Legal Systems in an Unfair World begins with a reference to
Socrates who went to his death in the belief of the integrity of legal procedures
carried out by legal institutions as opposed to a belief in the integr ity of and
obedience to the laws that condemned him (1). Legal institutions and access to
them for m the heart of this book. Laws are not its concern; access to them is. It
speaks of the need for a ‘just justice system’providing equal access for all citizens,
primarily through an exploration of the impact of wealth in creating injustices,
and the resulting barriers to such access. It is not an ideal form of justice that is
sought, but one which reduces injustice. Equal Justice oers a timely and fresh
take on injustices in the legal system.
For Wilmot-Smith, economic disparity is a root cause of injustice. Wealth’s
power needs to be neutralised.Seeing legal resources as a public good, he posits
that the distribution of legal resources should occur in a way that allocates
the benets and burdens of the legal system fairly across the citizenry – not
a condition in evidence currently. A fair distribution procedure through state
intervention is necessary.This involves two aspects of system design which are
considered in Equal Justice: the equal distribution of legal resources and the
primacy of the public forum for claims resolution.
Controversial positions are taken in Equal Justice. It proposes the state should
intervene in the market distribution of legal resources. It challenges the e-
cacy of private dispute resolution processes (primarily arbitration), arguing the
state should not support such processes. It advocates for general taxation to
fund its proposals. While the proposals set out in the book may challenge the
institutional establishment, the points advanced are made in a way that broad-
ens perspectives on justice deciencies of the legal system. Br inging the im-
pact of wealth into the conversation yields timely and astute comments on
the (in)ability of citizens to take their disputes to a forum which will dispense
justice. Arguments are made in a deceptively simplistic manner. Discussion is
couched in philosophical terms. This philosophical approach to injustices of the
legal system makes the book unique and a signicant addition to scholarship.
The chapters systematically build the argument. Chapters 1 and 2 set the
stage. The nature of the legal system, its purpose and relationship to justice are
explored. The right to equal liberty must mean equal protection of those liber-
ties through a just legal system (36). Equal justice, it is argued, requires sharing
the institutional benets and burdens equally among citizens which depends on
an equal distribution of legal resources (25-26, 33).Market distribution of legal
resources and wealth’s contribution to its unequal distribution are explored in
© 2020 The Author.The Modern Law Review© 2020 The Moder n LawReview Limited. (2021) 84(5) MLR 1159–1187
Reviews
Chapter 3. The author discusses the advantages wealth aords in terms of both
access to the legal system and the operations of institutions comprising the legal
system: it secures greater benets and fewer burdens of the legal system (60-64).
Addressing this failure requires state intervention justied by the goal of equal
justice (69).
Chapter 4 outlines the minimum level of legal services and access to institu-
tions the author believes should be universally available: he refers to this as the
‘fairness oor’. Wealth’s advantages create inequities and an unfair distribution
process. Wilmot-Smith argues the fairness oor ensures a fair process for dis-
tribution which equalises access to legal resources. Values of liberty and rule of
law are used to measure the oor (70,82–85), values which are safeguarded by
lawyers, judges and courts in their provision of legal services.
Chapter 5 provides the heart of Equal Justice’s argument for reform: neutralis-
ing the wealthy’s institutional advantage. Access to legal resources,says Wilmot-
Smith, should not be determined by wealth.Legal resources should not be sub-
ject to market supply and demand, where distribution is inuenced by wealth.
The state should intervene in the market to take responsibility for the distri-
bution of legal resources. A prohibition on contracting out of centralised state
provision of legal resources should be invoked primarily to ensure their equal
distribution and also to prevent the corrosion of the public option (101-105).
This prohibition would promote citizen action to ameliorate the system.If no
alternative is available, the powerful will seek to improve the system they must
work within. Where private options are available, this action would be lost.
Equal Justice’s reform proposals target not only lawyers, but also private dis-
pute resolution processes,and specically arbitration, which Wilmot-Smith says
is ‘inegalitarian’ (93). He suggests arbitration is the playground of the wealthy
who contract out of public court systems to resolve disputes privately. He views
arbitration as having created an institutional advantage for itself through state
recognition and enforcement of arbitration agreements and their awards. He
believes the state should not support arbitration in this way. While banning ar-
bitration outright is likely not feasible,the state, at minimum,should refrain from
supporting its advancement (93-94) as well as other private dispute resolution
processes which redirect legal resources in favour of the nancially pr ivileged.
Chapter 6 deals with objections to Equal Justice’s proposals to regulate legal
services, discourage private dispute resolution and require users of private sys-
tems to subsidise the public option through taxes.Wilmot-Smith examines and
succinctly addresses the objections (107-108).
Chapter 7 is a critique of the fragmentation of the current court system and
of private dispute resolution processes. For Wilmot-Smith, courts are about
justice; private processes are about dispute resolution (135-136). In devaluing
private processes as not providing justice, the book leans on seminal arguments
of Genn and Fiss.The author argues the legal system is public; dispute resolution
forums should equally be public to uphold the collective values of society such
as obedience to the law and equal treatment of the law, symbolised through
the physical edice of the courthouse (138, 146–150).He argues that if there is
equal justice, there would be no need for any resolution process other than the
public court (136).
1160 © 2020 The Author.The Modern Law Review© 2020 The Moder n LawReview Limited.
(2021) 84(5) MLR 1159–1187
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