1 - Introduction

Summary

Every civilised system of government requires that the state should make available to all its citizens a means for the just and peaceful settlement of disputes between them as to their respective legal rights. The means provided are courts of justice to which every citizen has a constitutional right of access. Lord Diplock in Bremer Vulkan Schiffbau and Maschinenfabrik v South India Shipping Corp. [1981] AC 909, HL, p. 976.

The justification of a legal system and procedures must be one of lesser evils, that legal resolution of disputes is preferable to blood feuds, rampant crime and violence. M. Bayles, ‘Principles for legal procedure’, Law and Philosophy, 5:1 (1986), 33–57, 57.

The first impulse of a rudimentary soul is to do justice by his own hand. Only at the cost of mighty historical efforts has it been possible to supplant in the human soul the idea of self-obtained justice by the idea of justice entrusted to authorities. Eduardo J. Couture, ‘The nature of the judicial process’, Tulane Law Review, 25 (1950), 1–28, 7.

The last fifteen years has been a period of significant change within civil justice systems around the globe and the fundamental reform of English civil justice which was part of that movement is now a decade old. This therefore seems an opportune moment for reflection. In choosing civil justice as my topic for the Hamlyn Lectures 2008, I am straying into territory well marked out by experts such as Sir Jack Jacob, Michael Zander, J.A. Jolowicz, Adrian Zuckerman and, of course, in his own time, Jeremy Bentham. But my ambition in these lectures is to offer a somewhat different perspective on civil justice. I am interested in theoretical questions about the social purpose and function of civil justice (in particular in common law systems) and empirical questions about how the civil justice system works in light of those purposes. My perspective on civil justice is shaped by the experience of nearly three decades spent studying how the civil justice system operates in practice. I have sat in people’s homes talking about civil justice problems and why they do or don’t want to litigate or wish they had or hadn’t.