Previously in this series, I wrote a blog entitled ‘If We are Evolved, We are Equal’,which discussed equality as a barometer for how far we have evolved as a species.

In order to have an equal society, the systems that run society, that is, the economic, legislative, political, criminal justice, cultural, religious, etc., systems must have equality-outcomes. Not only need they have equality as a given goal, but there must also be proven equality in the outcomes for the users of those systems.

For example, to say that all are equal under the law, but then to know that the systems that administer the criminal justice system enable racist bias, means that the user experience of the criminal justice system is not equal for everyone. Until all users of society’s systems share equal experiences, equality across the board in our society is not available.

This series of blogs is looking at what the systems that run society would look like once we evolve out of the epoch we are currently leaving, that is, the epoch where ‘power over’ and ‘might makes right’ were predominant and ‘the many’ are/were controlled by a ‘select few’. This epoch also prioritised a white, Anglo-Saxon, protestant, male, straight, able-bodied, western, resourced community over the rest of the population, resulting in huge inequalities for a broad spectrum of people. This prioritised agenda created the ‘-isms’ that exist/existed in that society, including but not limited to racism, sexism, sectarianism, etc. These biases were blatant and subtle throughout the networks of strata and systems that ran societies. This series of blogs is looking at each system in turn, to identify how they were compromised and what a more equal system would look like, once the old systemic biases fall away. This week we are looking at law.

What is Law?

Law is a system of rules created and enforced by social or governmental institutions to regulate behaviour, maintain order, resolve disputes, and protect rights and freedoms within a society. It can take many forms—written statutes, common practices, religious doctrines, or judicial decisions—and is backed by the authority of a state or community.

The idea of having laws and what those laws might be, has had an illustrious history, beginning in Mesopotamia and then from Socrates, Plato and Aristotle and the jurisprudential philosophers of their day, through to modern discourse on ‘how experiences of law differ’ to ‘who governs the governors?’

What is the Rule of Law?

Today, law is premised upon a fundamental tenet, which is the ‘Rule of Law’, meaning that all people and institutions, including the government itself, are accountable to laws that are publicly promulgated, equally enforced, and independently adjudicated. It means that no one is above the law, not kings, politicians, corporations, or judges.

The Rule of Law is the cornerstone of democratic and just societies. It evolved from ancient codes to modern constitutions, shaped by revolutions, philosophy, and hard-won struggles against tyranny. It ensures that the law rules nations, not the rulers.

In theory, this premise is worthwhile. In practice, the systems that have administered the law are created without equality-proofing, and the people administering the systems can have inherent bias, meaning that, for those persons being processed within the systems, equality is not guaranteed. So, how do we address that? Firstly, let’s look at where the systems came from.

The Civil and Common Law Systems

Religious Law, based on sacred texts, is the basis for law in, for example, Saudi Arabia and parts of Iran, and Customary Law, that grew out of traditional norms, is the basis for law in, for example, many African and Indigenous systems. However, in the main, there are two main legal systems in the world; Civil Law and Common Law.

In Civil Law, Roman Law was its historical premise, and is based on codified statutes, and it became the basis for legal systems across much of continental Europe, Latin America, Africa, and parts of Asia.

Common Law, based on judicial decisions and precedent, historically grew out of the English Legal System, and so became the premise for many of the legal systems that spread throughout the Commonwealth because of colonisation, including Anglo-American countries and former British colonies.

The Civil Law system is mostly ‘Inquisitorial’, which as the name suggests, means judges actively inquire and investigate while hearing cases, meaning judges have a duty to seek the truth of the case.

The Common Law system is mostly ‘adversarial’, which, as the name suggests, is combative in nature, with only whatever is ‘legally provable’ by the defence or the prosecution winning the case. Winning a case in an adversarial trial requires securing a “legal truth”, not an ‘actual truth’, based on whatever is admissible in court and what can be proven therefrom. Therefore, in an adversarial context, when a legal truth and an actual truth coincide, it is a coincidence only.

In comparing the Civil and Common Law models, there are advantages and disadvantages for both. However, for our purposes of seeking to determine what model might secure a more equality-focused model, the inquisitorial model is highly superior for several reasons.

The inquisitorial model limits the impacts of the wealthy accessing ‘better justice’ because of the ability to afford better legal representation. It also focuses on fact-finding and not a combative ‘contest’ between warring parties based on what can be proven in a court of law, meaning that truth, not legal expertise, is the element that wins the case.

There are several benefits to this. Firstly, it reduces the dependency on lawyer competence because it is the role of the judge to find the outcome for the case (juries are rare), which reduces the access to justice based on how much you can afford to pay for a lawyer. Also, crucially, an inquisitorial trial reduces the intimidation for victims and vulnerable persons coming forward to give evidence because the nature of the environment is less combative.

Equality-Proofing the Outcomes

If we look at the statistics for, say, victims seeking justice for sexual offences, countries with the inquisitorial systems far outweigh those countries with adversarial systems.

In the United Kingdom (Adversarial), conviction rates for Sexual Offences is around 1.5% of all reported cases (stats. 2023). Such low conviction rates and the gruelling nature of cross-examination and limited protections for victims being retraumatised in giving evidence at trial means that victims are disincentivised in coming forward, keeping reporting low. This means that that 1.5% conviction rate, compared to actual cases of assault, is significantly overblown.

In France (Inquisitorial), in the same year, conviction rates for Sexual Offences is around 12-14% of all reported cases. These rates are still low, but with judge-led interviews, greater privacy, forensic led processes and greater support for victims with protection laws in place, it means that victims are less disincentivised from coming forward and the process is more ‘truth focused’, which secures better outcomes for these crimes.

These painfully low statistics mean that not only are victims disincentivised from coming forward to report the crimes, but also that prospective would-be offenders are not disincentivised from offending because of the likelihood of not being reported, or convicted.

Recommendations

The Adversarial process has greater flexibility and capacity for people to speak out and challenge in court on their case, which can be critical in civil rights contexts. However, the Inquisitorial process secures better victim protection and procedural equality because the judge focuses on fact-finding, not lawyers ‘fighting in court’, and the case is Judge-led, meaning that the process limits the impact that wealth can have in accessing expert legal skill.

In a post-Patriarchal world, there will need to be a root and branch overhaul of the legal systems in order to protect and ensure fairness for victims.

Hybrid reforms, incorporating inquisitorial procedures for sensitive cases (e.g., sexual violence, child abuse), as well as introducing mandatory training in bias, trauma, and equality principles for all professional actors in court is essential.

Specialised courts, that have specific ‘trauma-informed provisions’ within the courts for domestic violence, youth, and vulnerable populations, is also essential to protect victims and secure redress.

Universal Legal Aid would ensure that everyone can access competent legal help regardless of income and procedural reforms, making legal processes more understandable and user-friendly, would reduce intimidation for those using the systems.

However, to secure better equality, key here is to look at the outcomes for victims of these crimes, to see which system secures the better results and why.

For example, people of colour are significantly overrepresented in prison populations across various countries, highlighting systemic inequalities within criminal justice systems.

Black Americans comprise 13% of the U.S. population but account for 37% of the incarcerated population. Native Americans are incarcerated at a rate of 763 per 100,000, more than double the national average of 350 per 100,000. And there are significant sentencing disparities, where black males in the USA receive sentences 13.4% longer than white males for similar offences.

In the United Kingdom, Black individuals make up 4% of the general population but represent 12.1% of the prison population and black people are arrested at a rate of 20.4 per 1,000 individuals, compared to 9.4 per 1,000 for white individuals.

These statistics underscore the persistent racial and ethnic disparities in incarceration rates, reflecting broader systemic issues within criminal justice systems. Addressing these disparities requires comprehensive reforms aimed at ensuring equity and justice for all individuals, regardless of their racial or ethnic backgrounds.

If equality is a barometer to represent a more evolved state of human consciousness, and inequality as a less evolved or primitive one, we can see that reform is needed. Key here is that it is the societal systems themselves (which are more powerful than the individuals within them) that maintain the inequality, even if the professed goal of that society is for all to be treated equally (for example, under the rule of law).

Therefore, inequality-proofing the systems require that we put in ‘equality screening’ checks and balances to ensure that equality it is a provable reality.

How to Measure Equality

In a bid to move towards a more equality-centred model, it isn’t enough to put policies in place that lean into an equality ideal. Instead, there must be a provable end-goal measureables that prove that users are experiencing the intended regard.

The checks and balances used in Risk Management, as well as community and user-interface feedback, is a decent model to emulate to ensure that equality is a deliverable outcome of these changes. This means that the voice of the marginalised user-experience is missing from this dialogue; this voice is essential if we are to remedy the inequalities in our legal systems and have a legal system based on fairness and equality, not just on history and tweaking the old systems.

Without root and branch reform, the systems will continue to deliver grotesque inequality for those people without the means or voice to demand change. As a society, we are duty-bound to protect those people who need that support. We have it within our capability to be the providers of that support and protection.