Speech to the University of Exeter Debating Society

In Britain today, some face an abundance of law.

• Young black men, subjected to endless demands by the police to account for themselves and their activities.
• Teenagers, found guilty of murder under joint enterprise rules; not because they committed the act, but because of who they knew, or were alleged to know.
• Prisoners, languishing in cells under the dreadful IPP sentence, sometimes for years beyond the term set by the court when they were sentenced.

Others face an absence of order.

• Victims of rape and sexual assault, waiting, sometimes for years, for the perpetrator to be prosecuted, if at all.
• Migrant women, trafficked into prostitution, with the threat of deportation if they manage to escape and raise the alarm.
• Citizens, fleeced by powerful financial institutions, or by dodgy builders, who lack the resources or wherewithal to pursue a claim.

The legal system all-too-often seems to concentrate injustice for some, while leaving many injustices unresolved. So let us be clear:

• The law is sometimes the cause of injustice.
• Injustices sometimes unfold in spite of laws against them.
• Injustices sometimes unfold in the absence of laws against them.
• The law sometimes impedes and frustrates the fight for justice.

Does this mean, as tonight’s motion puts it, that “the law has nothing to do with justice”. Of course not.

Indeed, the law has a lot to do with justice; that is, justice as defined and understood by the society in which it operates.

In our society, for example, the right to own private property – mansions and yachts, shoes and coats – is a dominant justice principle, underpinned by laws: civil and criminal.

I'm a Marxist, so I have some questions about the principle of private property, and with the laws surrounding it. But in the world as it is, I also have to accept that these laws offer forms of protection and predictability.

It means, for instance, that when I get home tonight, to my less-than-mansion-sized home, I can be reasonably confident that someone won’t have moved in. In the unlikely event that they have, I will have the law on my side to get my home back.

This is the form of law, the form of justice, we would expect to see in a society where private property – for better or for worse – is a dominant justice principle. It is an arrangement certainly preferable to alternatives: for instance my rounding up some friends with baseball bats to sort out the intruder, wild west style.

Consider another example: the appallingly low rates of prosecution of male sexual violence against women and girls. More than thirty years ago, the feminist legal scholar and activist Catharine MacKinnon argued that the law does not prohibit rape, it regulates it.

The point that she was making? In a sexist society, law and our standards of justice are defined from the male standpoint. This was an argument, she wrote, to change the way that the law operated, so that it enforced and reproduced different standards of justice.

We could make similar arguments about the racist nature of criminal justice processes, which leaves black people disproportionately targeted by the police. Or why it is that a state that privileges wealth and power doggedly pursues welfare fraud, while ignoring widespread tax-evasion by the rich.

In these and other cases, particular forms of law operate to enforce particular forms of justice.

Complex societies such as the UK operate with prevailing notions of justice, underpinned and regulated by certain forms of law. We all benefit from this arrangement, at least some of the time. Without law, how will our prevailing notions of justice, or new justice principles, be regulated and enforced, in a fair and consistent way?

If the law does not always deliver the kind of justice we would like to see, this is an argument for changing the law, or for redefining our notions of justice, or both.

Justice, however we define it, is not possible without law.