If the law is seen as an ass, whose fault is that?

The questions actually start in law school.

You’ll be at a party, and it will come out that you are studying law, and in the punters will wade.

“How in the world did the courts let off that scumbag?”

“How can you defend those criminal grubs?”

“How can you live with yourself, working in such a corrupt system?”

Once you are part of the justice system, you will be expected to answer for it – the strange decisions, the seemingly watertight prosecutions that fail, the cheating spouse that gets all the money and the kids too.


Just because you are a solicitor you have to justify everything that happens within the system? It seems pretty unfair.

It isn’t, though.

The phrase, ‘the law is an ass’ has its origins in a play from the 1600s, and was popularised by Charles Dickens in Oliver Twist; it references the mythical obstinacy and stupidity attributed to donkeys, and calls out the legal system for rigidly and stubbornly applying the law in a one-size-fits-all way.

That isn’t what happens – indeed, it is the subtleties and nuances of each case that can make court decisions seem inexplicable or unfair. Most people are well and truly capable of understanding these shades of grey, if they are properly explained – and if we don’t do that, who will?

The thing is, those of us within the system are the only ones who actually know the answers to these questions. We know that reprehensible people with a dreadful past can actually be innocent; we know that just because someone is accused of a really disturbing crime doesn’t mean they actually did it; we are committed – although of late, not committed enough – to the idea that a person is innocent until proven guilty, and not the other way around.

Those of us who have the privilege of working within our justice system know full well that it is highly effective and overwhelmingly fair and even-handed. We know that those on the bench strive to eliminate any possibility of bias, to ensure everyone is treated equally and that justice is done, not just in theory but in fact.


We are on the inside of the system and we know the nuances and quirks of a system designed to ensure that innocent people aren’t jailed and that everybody has access to the legal rights Australians take for granted. It would be dangerous for us to assume that this is obvious to laypeople, and that they will automatically understand a decision or outcome which seems inconsistent with common sense.

Whatever your area of practice, as an officer of the court you are an advocate for the system, and you have an obligation to explain it and defend it. Australia’s justice system is in any argument for the best and fairest in the world, and we need to make sure people know that, and know that we support it.

Solicitors are the face of the law – anyone who encounters the legal system at all will almost certainly deal with a solicitor; it is vitally important that we overtly respect it and make sure people understand it is a quality system of which we can all be proud.

This is doubly important at a time when a sometimes shrill and capricious media will highlight any rare failure. The Lawyer X scandal, the rare trust account defalcation, the jaw-dropping revelations of the inquiry into the Lehrmann rape trial – these things will always capture media attention. As day-to-day participants in the system, we need to ensure that people know this isn’t the norm, and that our system is trustworthy and high-functioning.

So when these questions come up at a barbecue, as you are flipping the rissoles and stirring the onions, explain that strange decision; go through why the presumption of innocence is so vital; point out that the outcomes in family court matters are the product of comprehensive and careful calculations based on what is best for all sides.

If solicitors can’t take the time to do that, if we stubbornly and rigidly refuse to explain the quirks of the system and why seemingly nonsensical decisions are in fact just and fair, the law might really be seen as an ass. Or at least, we might.


Shane Budden is a Special Counsel, Ethics, with the Queensland Law Society Ethics and Practice Centre.

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4 Responses

  1. Shane,
    I was of the understanding that the original expression was that the law is an ass and can be made any burden to bear, which was more a shot at the subjection of the law to the political whims of those in power and those who twist it dishonestly than at its intransigence. I happily stand corrected for my misunderstanding .
    My problem was that people lack the understanding that lawyers do not make the law and flor some reason think it is our fault that it is as it stands.

  2. after 30 years I don’t believe the above any more – too much law is a persons political views these days – look at the Judge who recently commented on someone else’s views on the next referendum – what we really lack these days is a way we can complain about some members of the judiciary and how pathetic some are ( and for those that disagree I was involved in the case where a retiring judge commented on a magistrate decision (which was set aside) and said “learned” is not something we can attribute to this magistrate.

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