A LUTHER FOR FAMILY LAW

Delivery of fair and accessible justice

In October 1517 Martin Luther pinned his 95 theses to the church door in Wittenberg. He translated the bible to his native German (New Testament published in 1522). He explained that priests were unnecessary for intercession between ordinary people and God. His, and later, versions of the bible translated by, for example, Tyndale and in the King James Authorised Version of 1611 were revolutionary. Anyone who could read, or listen to the text read to them, could find out what hitherto only a tiny educated minority could read. In a society where politics and religion were inseparable, and church attendance obligatory, what people discovered was truly liberating; and set sixteenth century Europe on course for politico-religious and civil war.

The bible and other religious literature were written in a language which was foreign to all but a tiny, often cloistered, minority of the population. Law is much the same today (as it has been for many centuries). It is written in a form of English (unlike the Latin Bible); but it is mostly only comprehensible to those – like monks of the fifteenth and sixteenth centuries – who are trained to read it. Thus, like those monks, this favoured minority can impart the foreign language message (for a fee: monasteries depended on lay cash, also) to those who seek its solace (eg clients in need of legal advice).

Courts Act 2003 s 75(5) says that Family Procedure Rules should be drafted in such a way as to ensure that ‘the family justice system is accessible, fair and efficient, and [that] the rules are both simple and simply expressed’. Some parts of that delegated legislation is broadly accessible. Some parts are hopelessly impenetrable: language can be ponderous, sometime opaque; and multiple references to other documents and provisions litter the rules. Frequently – far too frequently – the drafting is neither ‘simple’ nor ‘simply expressed’ in any sense which a modern Martin Luther would accept. Accessibility is worsened by the variety of subsidiary and sub-subsidiary guidance and practice directions: as if the bible depended on variant and other ersatz bibles. I doubt Martin Luther would have encouraged that either.

Family law must be read and understood by people who increasingly do not have access to the priesthood of the law; and who are mostly at a particularly wretched time in their lives. Our ‘pope’ – Sir James Munby P – issues decree after decree (they were ‘bulls’ in Luther’s time) with startling disregard for those who must read them. Sub-subsidiary legislation of dubious lawfulness (‘guidance’) emerges almost daily. Vernacular, ‘simply expressed’ politeness and care for those who must read these things and their world breaks up around them is as far away, as was thought for their flocks from priests in Luther’s time.

Family law cries out for a modern Luther. It cries out for a simply expressed system of law which offers a chance of delivering a system of justice which is ‘accessible, fair and efficient’. 

David Burrows

18 April 2014

Good Friday