I know the title sounds bizarre but hear me out. I’m not a Communist, just thinking aloud. Allow me to play Devil’s advocate for a moment, and have a little thought experiment. I’ll just apply the logic of public or private debate to the legal service and see where we end up.
The reason we have public services is to provide important services to people who otherwise couldn’t afford them. The problem with the private sector is that it allows richer people to get better outcomes simply because they have more money rather than because they are more deserving. (There are other reasons but this is a quick summary of the main reason). We have public education so that poor people have the same opportunities as everyone else. Rich people use private education to effectively buy better results and ensure their children have an advantage in life. We have public health so that everyone receives medical attention even if they are too poor to afford it. The rich use private health to effectively skip the queue and receive better care faster even if they are not in most need of attention.
Now let’s look at the legal service. This is a mainly private system where each individual chooses a lawyer to represent them in court and argue their case. There are asymmetric information problems as there is no way for an individual to know how good a lawyer is before hiring them. There are also game theory problems where hiring a lawyer is like an arms race, both parties spend more and more just to stay at the same point. The main lawyers make enormous money, while trainee barristers earn little or no money. To become a lawyer requires years of studying in university followed by years of unpaid work experience. This is way children of rich parents dominate the legal services. Lawyers cannot advertise, instead they work through firms and personal networks. As a result patronage is rife and who you know is as important as what you know. If people have little or no money, they can avail of free legal aid, provided by the state.
Imagine two people, A and B, get into a fight. Both claim they are innocent and the other person started it, while they merely defended themselves. Imagine A is wealthy and can afford to hire a lawyer for €1,000, while B is poor and can only afford a lawyer costing €100. Who do you think will win the trial? Clearly A has a big advantage, but not because he is less guilty, but because he hired the better lawyer. In other words he is less likely to go to jail because he has more money. Is this any different from buying a court?
Let’s say C is a reckless driver and hits D with his car. All things being equal, D would receive compensation. But imagine instead D is poor and C is rich. Imagine D is too poor to afford a lawyer and cannot afford to take time off work or he won’t be able to pay rent and electricity. Imagine C is rich and hires a top lawyer who uses his skill to imply that it was actually D’s fault he got hit. In this case even though D was in the right, C wins. How can this system be called right?
The law is supposed to be blind and neutral to an individual’s wealth, but as this example shows, it is possible for the rich to use their money to get a more favourable judgement. Just as private health and private schools means the rich can use their money to give themselves an advantage over the rest of society, so too does private legal services. This is why rich people almost never go to jail, even if they still millions, while poor people go to jail for shoplifting. Many people think it is fundamentally wrong for people to buy better education, but what about buying a court? What is the difference between this and corruption? Corruption is illegal, less expensive and more effective. So what is to be done?
Just as a nationalised health system would be more equitable and efficient (the government can use economies of scale and market power to hold down costs and wages), so would be a legal service. Imagine as a system where everyone receives free legal aid (paid for through taxes). Lawyers would be state employees and receive a fixed wage. The obscene wages earned by the top lawyers would be gone as would the pittance received by trainee lawyers. In effect, wealth would be redistributed within the system. Each person taking a case would be randomly assigned a lawyer (obviously only ones trained in that area). The outcome of A and B’s trial would have less to do with how much money they have and more with the details of the case, and of course luck. C would no longer be able to buy a verdict and D would be properly compensated.
A free service may encourage people to overuse the service and sue each other over nothing. This may not be a huge problem as court is a major pain for people involved and something people try to afford as much as possible. It needs to be seen if the current system leads to underuse in which case a free system would fix this. There could be a small fixed charge to deter this, say €100 or €1,000 depending on the case. This has the problem of being regressive in that the poor pay the same rate as the rich and the very poor may not afford it. A means test could be used though this is extra bureaucracy than in a universal system.
Lower wages may deter people from becoming lawyers. Is this a bad thing? After all, if you think about it, lawyers are not productive. The do not produce anything or add to the wealth of the nation. They merely shift it from one hand to another (the economic term is rent-seekers). If wages are lower, then more people may choose to be scientists or engineers than lawyers, which would presumably make the country better off. As the chance of a lawyer winning a case is more dependent on their skill relative to their opponent rather than their absolute skill, if the overall standard of lawyers drop, the country may be no worse off.
Needless to say this proposal hasn’t a hope in Hell of ever being implemented. The legal service would naturally fight tooth and nail against it and they would be enormously powerful. No politician would ever suggest something that sounds frankly Communist. Even I know it sounds mad. But it is worth thinking about.