This piece is available in audio form - can you believe it!?
Recently I found myself questioning
what it is that I love about law. For years, I've boldly claimed that
I love everything about it, the good sides, the boring sides, the
dull sides, the corrupt sides and the mind-blowingly complex sides.
However, I've discovered that I don't.
Don't get me wrong, I'm still in love
with the law, I'm just coming to realise I don't love it all. Some
may claim that this is the natural reaction of maturity. A
realisation that law is as diverse as it is complex. No one area can
be called the same for each were created to deal with a different
issue.
Each field has its appeal much like
various types of burgers. Vegetarian burgers offer healthy choices,
but meat always seems more satisfying. Just like property law
provides clear legal intrigue – but we all know human rights law
holds the complexity that can only be described as the way your mouth
waters when you see the juice run off a steak.
Some parts of law seem to sizzle with
excitement and something in my brain can't help but choose it over
other options. What's interesting is that I have never before
considered I would choose one area over another.
And why not choose property law?
Who can deny the thrill of sending a
caveat request or delving deep into native title to discover a real
and continuous connection to the land?
What is not to love about intense
contractual negotiation? Surely there is no lawyer that can't feel
that warm-belly satisfaction of having both the best deal and a happy
client. It's a rare combination but the drive to achieve it lives in
the heart of every property lawyer.
So then why do lawyers find themselves
not enjoying it – or any other branch of law?
I could give hundreds of analogies for
where the enjoyment and deep-set love for each branch and
denomination of law come from but it wouldn't explain what I mean.
It is not merely a branch of law I
have questioned my love for, it is the traditional study of it.
In some senses, the study of law is not
the law itself. The study of law often misses the raw truth about the
foundations of our society.
For the study of it misses the fact
that the law is merely concrete.
I am speaking in metaphor, where
concrete refers to the dark grey, rough-edged and unattractive
foundations upon which a house is built. The house is society and it
is because of concrete that it can stand firm. Just like the law the
concrete we know remains partly unfinished because there's always a
chance of extending the house; somewhat unsightly, because there's no
way to ever completely make it polished and mostly it does not carry
the flourish and beauty of the house above it.
A builder, as a lawyer, will see the
beauty in concrete – but I am beginning to question if the study of
law can create people that appreciate such imperfection. Too often I
have been taught to ask why there is a hole in the law.
Should it not be assumed that if there
is such issue, it is open to interpretation? Do I honestly need
another academic to tell me this?
As a young student of the law, I'd like
to propose that the study of law is failing to build the legal mind.
The legal mind must learn that law is not a solid block of polished
marble which is the feature of a house. Rather it is the unpolished
and unfinished block of concrete that holds up the house.
So what is it that I have fallen out of
love with?
Arguably it is not a side of the law.
Perhaps it is more a theology of law – I wish more academics openly
embraced the imperfection and omissions of law. If we had such
comprehensive documents not only would governments become overwrought
with predicting, protecting and presuming but courts would lose their
flexibility.
Is it not the beauty of the common law
system, that it advocates for adaptability? Is not a national pride
that our judges have an acute awareness of the need for
interpretation when providing modern justice.
Is it not obvious that this openness to
interpretation has provided justice in times of hopelessness. While
easily overridden, statutes should not be a comprehensive source of
law, rather they are a mere crutch upon which the courts rest
interpretation.
I am no legal theologian but the more I
study independently and work with professionals it dawns me that I
have held the law to be perfectly created. Studies of law propose old
law is overwritten with new law. But the truth is, there is no such
thing as new law. Instead we merely refine and add to an old,
imperfect foundation.
Students and lawyers all must realize
the aim for perfection is not futile in law, but perfection in law
will not come from what is recorded. Rather each lawyer must act as
the mouth piece through which justified interpretation can occur. I
have fallen out of love with calling law perfect – rather, it is
imperfectly providing the lectern from which lawyers provide justice.
Lulu Hensman
Lulu Hensman
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