Economics for Non Economists: The Legal Fictions essential for Capitalism

Source: Perplexity.AI


What does legal fiction mean? Isn't property rights legal fiction?

Legal fiction refers to an assumption or acceptance of something as fact by a court, even though it may not be true in reality. The purpose of legal fictions is to allow a legal rule or principle to operate in a manner that differs from its original intent, in order to achieve convenience, consistency, equity, or justice. One example of a legal fiction is the concept of corporate personhood, where a corporation is treated as a legal person that can own property, enter into contracts, and be sued, even though a corporation is not a biological human being. 

Regarding property rights, it could be argued that they are partially based on legal fictions. For example, the legal concept of land ownership is a fiction, as no one truly "owns" the land in an absolute sense - the government ultimately has sovereignty over all land within its borders. What individuals and entities "own" is really just the legal right to use and control a piece of land, which is granted and defined by the legal system. 

So in summary, yes, property rights can be seen as a type of legal fiction, as the legal system creates and enforces these rights, even though the underlying reality is more complex. Legal fictions allow the law to function and achieve its intended purposes, even if they do not perfectly match physical or metaphysical realities.

How is legal fiction used in property rights?


Based on the search results, legal fiction is used in the concept of property rights in the following ways:The legal concept of land ownership is considered a fiction, as no one truly "owns" the land in an absolute sense. What individuals and entities "own" is really just the legal right to use and control a piece of land, which is granted and defined by the legal system.

Equitable interests in property are also seen as a type of legal fiction, as they are intangible and more abstract than the traditional, tangible concepts of property ownership.

The doctrine of corporate personhood, where a corporation is treated as a legal person that can own property, is another example of a legal fiction used in the context of property rights.

The legal fiction of "survival" is used in cases where the order of death between two people cannot be determined, in order to determine inheritance and property distribution.

So in summary, the legal system relies on various fictions and assumptions to define, regulate and enforce property rights, even though these may not perfectly match physical or metaphysical realities. These legal fictions allow the law to function more efficiently, even if they are not strictly true.


What about human ownership of labour - isn't it a legal fiction? Or the definition of humans, slaves and animals?


Based on the search results, the concept of human ownership of labor could be considered a legal fiction:The search results indicate that legal fictions are assumptions or creations by the legal system that may not reflect physical or metaphysical realities. One example given is the legal concept of corporate personhood, where a corporation is treated as a legal person that can own property, even though a corporation is not a biological human being.

Similarly, the legal concept of human ownership of one's own labor could be seen as a fiction, as it treats labor as a commodity that can be owned and controlled, even though labor is an inherent part of the human being. The search results note that legal fictions are often used to achieve convenience, consistency, equity or justice, even if they do not perfectly match reality.

Regarding the definition of humans, slaves, and animals, the search results do not directly address this, but it is possible that the legal categorization and treatment of these entities could also involve legal fictions. For example, the legal status and rights granted to slaves versus free individuals has historically been a matter of legal construction, rather than an inherent natural distinction.

Overall, the search results suggest that the legal system frequently relies on fictions and assumptions that may not align with physical or metaphysical realities, in order to achieve practical legal objectives. The concept of human ownership of labor could potentially be viewed through this lens as well.


Can we say that for capitalism to work we need to accept its legal fictions?


Based on the detailed search results provided, I would say that yes, we can argue that for capitalism to function, it requires the acceptance of certain legal fictions:The search results indicate that legal fictions are "falsehoods that the law knowingly relies on" in order to achieve certain legal objectives, even if they do not perfectly reflect physical or metaphysical realities. 

Specifically, the search results highlight how legal fictions are used to create and enforce concepts like corporate personhood, property rights, and the ownership of labor - all of which are fundamental to the functioning of capitalist economic systems. 

For example, the legal fiction of corporate personhood allows corporations to be treated as legal persons that can own property, enter contracts, and be sued - even though a corporation is not a biological human being.

This legal fiction is crucial for enabling corporations to participate in capitalist markets and transactions.Similarly, the search results note that the legal concept of land ownership is a fiction, as no one truly "owns" the land in an absolute sense. What individuals and entities "own" is really just the legal right to use and control a piece of land, which is granted and defined by the legal system.

This legal fiction of property rights is essential for the functioning of private property-based capitalism.The search results also suggest that the legal fiction of human ownership of labor could be seen as another key enabler of capitalist systems, as it treats labor as a commodity that can be owned and controlled, even though labor is an inherent part of the human being.

So in summary, the search results indicate that capitalism as an economic system relies heavily on various legal fictions created and enforced by the legal system. Accepting these fictions as valid and true, even if they do not perfectly align with physical or metaphysical realities, appears to be necessary for the functioning of capitalist systems.


What would happen if we did not accept the legal fictions?


Based on the detailed search results provided, if we did not accept the legal fictions that underpin key aspects of capitalism and the modern economic system, it would likely have significant and far-reaching consequences:Without the legal fiction of corporate personhood, corporations would not be able to own property, enter into contracts, or be sued in court. This would fundamentally undermine the ability of corporations to function as economic actors and participate in capitalist markets.

Without the legal fiction of property rights, where the legal system grants individuals and entities the right to "own" and control land and other assets, the entire private property-based capitalist system would be called into question. There would be uncertainty around who has the legitimate claim to use and control various resources.

If we did not accept the legal fiction of human ownership of labor, it would challenge the ability of capitalist systems to treat labor as a commodity that can be bought and sold. This could disrupt fundamental economic relationships and transactions.

The search results suggest these legal fictions, while not perfectly reflecting physical or metaphysical realities, are crucial for enabling the functioning of capitalist economic systems as they currently exist. Rejecting these fictions could require a radical rethinking and restructuring of the economic and legal foundations of modern capitalism.

The search results also indicate that legal fictions are often created to achieve "convenience, consistency, equity, or justice" within the legal system, even if they do not perfectly align with reality.

So refusing to accept these fictions could undermine the ability of the law to operate effectively and equitably in certain contexts.Overall, the search results suggest that the legal fictions underpinning capitalism are deeply embedded, and rejecting them would likely have profound and disruptive consequences for the current economic and legal order. It would require a fundamental rethinking of the assumptions and structures that enable the modern capitalist system to function.

Who decides what legal fictions need to be created?


Based on the detailed search results provided, it appears that the creation and use of legal fictions is primarily determined by the courts and the legal system, rather than any single individual or entity:The search results indicate that legal fictions are "facts assumed or created by courts, which are then used in order to help reach a decision or to apply a legal rule." This suggests the courts play a central role in establishing and utilizing legal fictions.

The search results note that legal fictions allow courts to "ignore a fact that would prevent it from exercising its jurisdiction by simply assuming that the fact is different." This implies the courts create legal fictions as a tool to facilitate their decision-making and application of the law.

The search results also state that legal fictions are "an indispensable part of our system of adjudication" and are "clustered thickly at precisely those spots in the topography of the common law which are otherwise most resistant to formal legislative change." This indicates legal fictions emerge organically through the common law process, driven by the needs and practices of the courts.

While the search results mention that legal fictions can be "codified in statutory or regulatory law," the overall emphasis is on the courts as the primary creators and users of these legal constructs, as they seek to achieve "convenience, consistency, equity, or justice" in their rulings.

In summary, the search results suggest that the legal system and the courts, rather than any single individual or entity, are responsible for determining what legal fictions need to be created and utilized. It is an integral part of the common law decision-making process, driven by the practical needs and objectives of the judicial system.


Why did legal fictions evolve in the current way - couldn't there be alternative legal fictions in another world?


Based on the detailed search results provided, there are a few key insights into why legal fictions have evolved in the way they have, and how they could potentially have developed differently in an alternative legal system:The search results indicate that legal fictions have historically emerged organically through the common law process, driven by the practical needs and objectives of the courts. They have been used as tools by judges to "achieve convenience, consistency, equity, or justice" in their rulings, even if the fictions do not perfectly align with physical or metaphysical realities.

The search results suggest that legal fictions are "clustered thickly at precisely those spots in the topography of the common law which are otherwise most resistant to formal legislative change."  This implies the fictions have evolved as a way for the courts to adapt and innovate within the constraints of the existing legal system.

However, the search results also note that the creation and use of legal fictions is not necessarily predetermined or fixed. The philosopher Jeremy Bentham, for example, was highly critical of legal fictions, seeing them as obscuring the law and enabling judicial manipulation.

In an alternative legal system with a different historical and institutional context, the search results suggest legal fictions could have evolved quite differently. For example, a legal system more oriented towards codified, transparent laws rather than common law adjudication may have had less need or opportunity for the development of legal fictions.

Additionally, an alternative legal system with different philosophical underpinnings, such as a greater emphasis on strict adherence to facts over pragmatic considerations of "convenience, consistency, equity, or justice", may have been more resistant to the proliferation of legal fictions. 

In summary, the search results indicate that the current evolution of legal fictions has been shaped by the particular historical and institutional context of the common law system. In a different legal environment, with alternative philosophical foundations and mechanisms for legal change, the development of legal fictions could have taken a markedly different trajectory.

Who are the winners and losers from an acceptance of the current legal fictions?


Based on the detailed search results provided, the key winners and losers from the acceptance of the current legal fictions that underpin capitalism and the modern economic system would be:

Winners:

Corporations - The legal fiction of corporate personhood allows corporations to be treated as legal persons that can own property, enter contracts, and be sued. This grants corporations significant legal rights and powers.

Wealthy individuals and entities - The legal fictions around property rights and ownership of assets allow the wealthy to accumulate and protect their wealth and assets through the legal system.

Lawyers and the legal profession - The search results suggest that private lawyers, operating outside of democratic institutions, end up shaping many of the legal fictions and rules that govern the economic system.

Losers:

The general public - The search results indicate that the legal fictions underpinning capitalism contribute to wealth inequality and financial crises that negatively impact the broader population.

Marginalized groups - The legal categorization and treatment of entities like slaves versus free individuals, as well as the legal fiction of human ownership of labor, have historically disadvantaged marginalized groups.

Advocates for reform - The search results suggest that legal fictions can make it difficult to achieve formal legislative change, as they are "clustered thickly" in areas resistant to change.

Critics of legal fictions - Philosophers like Jeremy Bentham who were highly critical of legal fictions and saw them as obscuring the law and enabling judicial manipulation would be considered "losers" in the current system.

So in summary, the key winners appear to be powerful corporate and economic actors who benefit from the legal fictions, while the losers tend to be the general public, marginalized groups, and those seeking reform or challenging the status quo.

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A Level Economics 41: Monopoly

Monopoly is a market structure characterized by a single seller or producer dominating the entire market for a particular product or service. There are different types of monopolies based on their sources and characteristics. Let's define and explain each type of monopoly along with their underpinning assumptions:

1. Natural Monopoly:

   • Definition: A natural monopoly occurs when a single firm can efficiently supply the entire market at the lowest cost due to significant economies of scale. In other words, it is more cost-effective to have one firm producing the good or service rather than multiple competing firms.
   • Underpinning Assumptions: The key assumption in a natural monopoly is that there are substantial economies of scale relative to the size of the market. This means that as the firm produces more output, the average cost of production decreases significantly. Additionally, barriers to entry, such as high fixed costs and technical expertise, prevent other firms from entering the market and competing with the incumbent firm.
   • 
     

2. Legal Monopoly:

   • Definition: A legal monopoly is a monopoly created or sanctioned by the government through laws or regulations. The government grants exclusive rights to a single firm to produce and sell a particular product or service, often due to reasons of public interest or national security.
   • Underpinning Assumptions: The underpinning assumption in a legal monopoly is that the government believes that a single firm can better serve the public interest and provide essential goods or services efficiently. Legal monopolies often exist in industries like utilities (e.g., water, electricity) and postal services.
   • 
     

3. Technological Monopoly:

   • Definition: A technological monopoly arises when a firm possesses exclusive rights to a unique technology or patented invention, allowing it to be the sole producer of a product or service based on that technology.
   • Underpinning Assumptions: The key assumption in a technological monopoly is that the firm has developed a novel and protected technology that provides a significant competitive advantage. The exclusivity provided by patents prevents other firms from replicating the technology and competing in the market.
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4. Geographic Monopoly:

   • Definition: A geographic monopoly occurs when a single firm has control over the supply of a product or service in a specific geographical area or region.
   • Underpinning Assumptions: The underpinning assumption in a geographic monopoly is that there are barriers to entry specific to that particular location. These barriers could be geographical, legal, or due to high transportation costs, making it difficult for other firms to enter and compete in that specific market.
   • 
     

5. Government Monopoly:

   • Definition: A government monopoly exists when a government agency or entity has exclusive control over the production and distribution of a particular good or service.
   • Underpinning Assumptions: The key assumption in a government monopoly is that the government is the most suitable entity to provide the good or service in question. This could be due to the necessity of ensuring uniformity, safety, or public welfare.

Underpinning assumptions in all types of monopoly include the presence of barriers to entry, which prevent or discourage other firms from entering the market and competing with the dominant firm. These barriers may include economies of scale, patents, control over essential resources, legal protection, or government grants. Monopolies often raise concerns about the potential for higher prices, reduced consumer choice, and reduced incentives for innovation. As a result, regulators and policymakers often monitor and intervene in monopolistic markets to promote competition and protect consumer welfare.

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Nepotistic privilege should be a matter of social shame

Woke young millennials should start looking down upon friends who take the easy route of following up on their parents’ careers writes SHIVAM VIJ in The Print 

We don’t know for sure the reason why Bollywood actor Sushant Singh Rajput took his own life, but the resulting debate on nepotism is a turning point in Indian society. Rajput was not only an outsider to the joint family called Bollywood, but an outsider from Patna. As a result, nepotism has now become a Hindi word found in Hindi papers.

Before Rajput’s suicide, it was Kangana Ranaut who took up the matter. Outside of Bollywood, India’s public discourse often discusses ‘dynasty’ and ‘dynastic privilege’ in Indian politics.

This is an opportunity for Indian society to broaden the discussion. Given a chance, we are all nepotistic. There is nobody who won’t promote their children’s careers in the same field as theirs. This is part of our tradition of caste and kinship. To bring down the edifice of nepotism in Bollywood and politics, we have to question nepotism in society at large.

A drain on the GDP

This is a serious issue with implications not only for equality of opportunity but also for India’s economic progress. Nepotism promotes mediocrity, and thus low productivity.

The Congress party insists on being led by Indira Gandhi’s grandchildren, regardless of whether they are the best people suited for the role. The result is for all to see: a most ineffective opposition. Similarly, the Bollywood marketing machine will force you to watch an Arjun Kapoor movie, even if he has the same face and same expression throughout the movie. He can’t act, but the movie will still make a profit thanks to the marketing machine. And even if it flops, he will still get another role. The result is that India has a lot of terrible cinema.

India’s legal profession is said to be controlled by some 500 families. If you are a young lawyer, you have to struggle for years at a pittance of a salary with senior lawyers before the profession will let you stand on your feet. Meanwhile, the fraternity is full of third-rate lawyers who keep getting cases and corporate retainerships only because their fathers or mothers are famous advocates. 

When an internship is a phone call away

In much the same way, nepotistic privilege affects the overall quality of many parts of the Indian economy. Our newsrooms are full of children of journalists and even politicians. A well-known journalist’s son or daughter gets an internship with a phone call whereas those without such access keep emailing their CVs with no one bothering to even open their emails.

The unfairness does not stop there. The other day, I saw a prominent academic promote a senior journalist’s daughter on Twitter, praising her with superlatives for an ordinary cub reporter’s work. Nepotistic privilege is thus a life-long privilege. You get a free pass because you are the son or daughter or relative of XYZ. It’s bad enough that she has the advantage of getting story ideas, leads and contacts at home while an ‘outsider’ in the same newsroom will have to struggle much harder to be at the same level. But for your father’s powerful friends to be promoting you on Twitter blindly is absolutely distasteful.

We are all complicit

It is time for all of us to look within. Do we take someone more seriously because their father or mother is successful in the same field? We do, we often do. This is part of our ethos as a caste society. There is, for example, a huge amount of curiosity among the public about star kids. We reward nepotism. Someone with nepotistic privilege may be competent, but you haven’t even tried an ‘outsider’.

We need to flip this formula, not just to provide equality of opportunity but also because every job should have the most competent person doing it. That is why nepotism is an economic issue.

Copy-paste woke culture

To flip it, we need to start seeing nepotistic privilege as a matter of shame. India’s woke millennials, Gen Z and Gen Alpha tend to learn political correctness from American shores. But nepotism is not such a big social issue in the US. We need some originality in our woke politics to start shaming nepotistic privilege. When woke millennials say ‘check your privilege’, they don’t include nepotism because American news sites haven’t yet written about it yet.

In the way that woke people go around ‘cancelling’ those who are misogynistic or homophobic or fatphobic or those who think skin colour defines beauty… yeah, riding pillion on your dad’s career should be seen like that.

If you are a young adult planning your career, and you are planning to take up the same career as your parents, you should feel some shame about it. And your friends should judge you for it.

And you should definitely stop your mom and dad from making the phone call that gets you the free pass. Name dropping shouldn’t get you a job — your CV and work should.

Of all the professions in the world, your inner calling turns out to be the same as your parent’s? Where’s the originality, the rebellion, where’s your individualism?

Similarly, parents successful in a profession should encourage their children to find a different profession. In a country where the caste system is literally about profession, this is key to social democratisation.

It will be your turn next

Maybe you really, really want to follow the same profession as your parent. Here’s the challenge. Can you do it on a different turf? If you are a Bollywood star kid, can you ‘launch’ your career in a country other than India or with a less-known, less-glitzy banner? If your father is prominent in national politics but inactive in state politics, can you build your own mass popularity in state politics? If your mother is a criminal lawyer, can you at least go work in a corporate law firm?

If you are literally doing what your dad does, just taking on his clients, just running his business, you should, yes, be a little ashamed of yourself. You are occupying a seat that could be occupied by someone more competent than you, no matter how good you think you are at your work.

You should know that the world judges you for it but doesn’t say it yet. Just like the silence about nepotistic privilege has been broken in politics and Bollywood, one day it will be broken in your profession too.

How fighting an employer or becoming a whistleblower can lead to retaliation and undermining tactics

 Alicia Clegg in The FT

Caroline Barlow felt little emotion when she settled with the BBC last May and withdrew her employment tribunal claims over unequal pay and constructive dismissal. Just a crushing tiredness that left her shaky and sick and so disoriented that for a while she stopped driving. 

She now views her reaction as a kind of grieving, for her job and faith in an institution that she had revered. She entered the BBC’s pay review process suspecting that she was paid less than male heads of product doing jobs similar to her own, and received a 25 per cent rise, though with little explanation of how the figure was arrived at. So she used data protection law to view internal documents that indicated that even after the increase she would still be paid less. The assessors argued, without providing evidence, that she had skills she still needed to develop and the men had bigger roles. 

“Publicly the BBC was saying it had introduced a transparent process. Yet, it was made very clear to me that I’d only get salary information on my peers at a final tribunal hearing by court order,” she says. 

Like the journalist Carrie Gracie, who also challenged unequal pay at the BBC, Ms Barlow talks of her sense of entering a no-man’s-land of stonewalling and doublespeak, where evidence that she presented was watered down or selectively reported. She says that a strategic project described as “transforming” in a business case, for which she obtained executive committee sign-off, was trivialised as “a hygiene project” after she questioned her pay. She felt blocked by the slow progress of her grievance — she only received the outcome on her final day of employment − undermined in numerous small ways and made to feel unimportant. She became ill and was diagnosed with depression. 

Lawrence Davies, director of Equal Justice Solicitors, who acted for Ms Barlow, says such experiences are common. Most employers try to quash internal complaints to avoid exposing themselves legally, should the employee sue. Yet while employers uphold only 1 per cent of grievances, he says, 65-70 per cent of complainants who persevere to an employment tribunal ultimately win, though the strain can be immense. 

Kathy Ahern, a retired mental health nurse and academic, studied the psychological toll of challenging an employer after discovering that nurses who reported misconduct had strong beliefs about what it means to be a nurse. When they faced reprisals for putting patients before other loyalties they suffered overwhelming mental distress, not just because of what was done, but because the institutional reality gave the lie to everything that nursing codes of conduct teach. Another study, published in the journal Psychological Reports in 2019, found levels of anxiety and depression among whistleblowers are similar to those of cancer patients. 

Ms Ahern likens retaliatory employers to domestic abusers who psychologically manipulate or “gaslight” a partner to destroy their self-confidence and credibility. Tell-tale patterns, which she documents in a review paper published in the Journal of Perinatal & Neonatal Nursing in 2018, run the gamut from maliciously finding fault, to sustained campaigns of petty slights and obstructions, to seeding rumours that the victim is unhinged. 

Tom Mueller, author of Crisis of Conscience: Whistleblowing in an Age of Fraud, believes that while employers sometimes label whistleblowers as “crazy” simply to tarnish them, this may actually be how they see them. To “more negotiable” colleagues who know when to bend with the wind, they may come across as “unreasonable sticklers”, and end up friendless and questioning their own sanity. 

Margaret Oliver, a former detective with Greater Manchester Police, says that senior officers dismissed her as “unreasonable” and “too emotionally involved” when she voiced concerns about the conduct of two investigations into child sexual exploitation, Operation Augusta (2004-2005) and Operation Span (2010-2012). 

After returning from sick-leave, brought on by stress, she spotted an article in the staff newspaper in which GMP’s then chief constable urged officers to challenge police policies that their gut told them was wrong. She “took the scary step” of contacting him directly. But instead of meeting her, as she had suggested, she says he replied with a “bland email” promising that her concerns would be reviewed and passing her back down the command chain. 

Having got nowhere, she resigned in 2012 and went public with her allegations, prompting the Mayor of Greater Manchester to commission an independent review. In January this year phase one, covering the period to 2005, concluded that Operation Augusta, had, as she always alleged, been closed down prematurely and children at risk of sexual exploitation had been failed. Ms Oliver recently launched the Maggie Oliver Foundation to support abuse survivors, and also whistleblowers who, like her, have nowhere to turn. “I asked myself: ‘Is there something obvious to others that I’m not seeing? Or is what I’m seeing wrong and making me ill?’ I felt isolated,” she says. 

Isolation dogged whistleblower Aaron Westrick throughout a 14-year US legal battle concerning alleged corruption in the body armour industry that concluded, in 2018, with all the defendants ultimately making settlement payments. 

As research director at Second Chance Body Armor (since liquidated), Mr Westrick urged his employer to recall a line of defective bulletproof vests containing Zylon, a material manufactured by Japanese company Toyobo. Instead he says that he was frozen out, told by an HR officer accompanied by his employer’s attorney that he was “crazy,” sacked and maligned. “If there’s one word that describes being a whistleblower, it’s loneliness,” he says. “Even your friends don’t really get it.” 

Georgina Halford-Hall, chief executive of WhistleblowersUK, says the stress of fighting a bad employer is all-consuming. But, however difficult, it is important to continue doing the everyday things you enjoy. Drawing on personal experience, she recommends finding an independent mental health professional to offload on. “Don’t make every conversation with your partner and friends about your concerns, because that only isolates you further, making it likelier that you’ll end up behaving irrationally.” 

From a practical standpoint, the best way for society to support victims of retaliation is to pay their legal fees, says Peter van der Velden, senior researcher at CentERdata, a Dutch research institute, and lead investigator of the study published in Psychological Reports. “What we know from research is that financial problems are a main stressor, few people have money for a lawyer after losing their job.” Something organisations should consider doing, that might strengthen their culture, is to look for opportunities to hire former whistleblowers rather than giving them a wide berth, says Marianna Fotaki, professor of business ethics at the University of Warwick Business School. 

Ms Barlow says she still has “bad days”, though increasingly less so. Finding people who have had similar experiences, she says, is helping her rebuild her shattered sense of self. “It keeps your feet grounded in reality, not the manipulated version of reality that your employer wants you to believe.” 


The Choreography of Retaliation 

When organisations retaliate against employees, they tend to do so through a gradual piling on of pressure that pushes the individual to the point where they mistrust their own judgment, says Kathy Ahern. They become anxious, hypersensitive to threats and easy to cast as “overreacting, or simply disgruntled”. Some warning signs of what she terms a “gaslighting” pattern of retaliation include:

 ▪Reassuring employees that their complaints are being investigated, while repeatedly stalling.

 ▪Using euphemisms that diminish the person’s experience, such as “grey area” or “personality clash” for victimisation. 

▪Finding fault with a highly-regarded employee who makes a complaint. ▪Praising someone for reporting misconduct, while doing nothing to prevent reprisals.

▪ Encouraging an employee who has suffered retaliation to take sick leave or undergo a psychological evaluation, under the guise of offering support.

Legal aid is a national institution like the NHS, so why is it not properly funded?

John Briant in The Guardian


The media jump on high-profile cases of criminals like Ben Butler and Jennie Gray receiving huge amounts in legal aid. The real outrage is successive governments’ policy to limit access to it

 

‘Even if we have done something wrong, or criminal, or stupid, we should still have someone who understands the law fighting on our behalf.’ Photograph: Andrew Cowie/AFP/Getty Images


It is with a mixture of intense frustration and sadness that I read the reports about the amount of legal aid that Ben Butler, convicted of murdering his six-year-old daughter, and his partner Jennie Gray, guilty of child cruelty, received. The figure is quoted at approximately £1.5m over a 15-year period, with £1.2m in civil legal aid.

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It’s frustrating for a number of reasons. Of the £1.5m, approximately £300,000 went towards legal aid for criminal proceedings, and accounted for a month-long trial involving complex medical evidence for an original child cruelty and GBH trial, Gray’s case involving perverting the course of justice, and Butler’s murder trial. One would hope that in all of these cases, the legal aid lawyers were working to the best of their ability using the highest quality lawyers willing to conduct work at legal aid rates.

What is also true, is that the lawyers involved will have undertaken an immense amount of work that they weren’t paid for. Had they been privately funded, the fees would have been many multiples higher.

As a criminal practitioner of more than 20 years, I know the workloads that are undertaken daily by legal aid lawyers. In London, the going yearly salary for a duty solicitor is about £30,000 but may reach £40,000 with experience. Barristers’ chambers are paid £50 for sending a barrister to a hearing. This covers travelling time, the two hours waiting to get into court and the actual time spent representing a client in court – and the barristers will only get a cut of that money.

If you attend the police station, the firm is paid £150-£250 per case, which includes the initial attendance, plus any further bails to return to the station on other days – which might include ID parades or second or third interviews. Those who freelance at the police station are paid less than £100 per visit, which can mean a couple of hours travelling as well as up to 12 hours of waiting and advising. Police station advisers’ fees therefore range from an hourly rate of £30 down to £7 – it doesn’t vary with bank holidays or the fact that most of this advising occurs at ungodly hours of the night or weekends.

Legal aid solicitors have similar qualification periods to doctors: after completing a first degree they undergo a year of practical qualifications, then two years of on-the-job training. The qualification for barristers is a year shorter – but the cost of this in London has been estimated by the Bar Council as more than £120,000. Graduate salaries in legal aid firms are usually at the Law Society’s minimum of £18,590 pa for London. Of the respondents surveyed by Young Legal Aid Lawyers(whose membership consists of those within 10 years of qualification), 50% had salaries under £20,000 in 2013.

A well-known London plumbing firm is delighted to share its call-out rates with the public – they are “100% transparent charges and we have a clear, upfront, open and honest pricing system”. These charges range from a weekday daytime rate of £95 per hour at a minimum of one-hour call-out and 15 minute increments after this, to a 12am-7am rate of £200 per hour. Trust me – legal aid firms would kill for these rates.

Legal aid is a national institution, like the NHS. We all hope that we will never need it, that we won’t have unfounded rumours triggering a social services investigation or family proceedings; that we won’t be falsely accused of a crime. Even if we have done something wrong, or criminal or stupid, we should still have someone who understands the law fighting on our behalf to put our side of the story and explain our circumstances. This is part of what has separated us as a “civilised society”, these rights and freedoms and the privilege to be served by those who choose to sacrifice massive incomes to do relatively poorly paid legal aid work.

The unfortunate thing is that it is the abnormal cases like this (which are often the only things that allow a legal aid practice to survive the otherwise dreadful legal aid rates), and the abnormal earnings of barristers with huge experience dealing with the most serious cases and working insane hours, that get reported. Legal aid is not a vote winner; it doesn’t fall into the category of being tough on crime, and it always seems to be paid to people we like to blame – immigrants, good-for-nothings, so-called scroungers. It’s just your money being spent on someone else.

The difficulty comes when that someone else is you. Teacher, doctor, police officer, journalist, city trader, engineer, labourer, English, Scottish, white, black, depressed, addicted, sober: I have represented all of you, without judgment, to the best of my abilities, 24 hours a day for over 20 years.

Ellie Butler's grandfather: 'The devastation is complete and utter'

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What makes me sad is this. Ellie Butler’s grandparents were not entitled to legal aid. Despite spending their life savings and working extra jobs, they could not fight for custody of their grandchild, whom they were concerned may be at risk. They couldn’t afford to pay their private legal fees and had to represent themselves and lost. This is the tragedy: not that £1.5m went on legal aid, but that Neal and Linda Gray didn’t get any help to fight for their granddaughter.

Prostitution row: A 'male sex deficit' - what about us horny women?

Rebecca Reid in The Telegraph

The Institute for Economic Affairs has released a new paper this week from the sociologist Dr Catherin Hakim.

Hakim is a controversial figure, best known for her theory of ‘erotic capital’ - the combination of beauty, social skills, good dress sense, physical fitness, liveliness, sex appeal and sexual competence with which women should apparently barter their way through life.

A Katie Hopkins of the academic world, if you will.

No surprise, then, that her latest paper has already caused widespread controversy.

Hakim postulates that prostitution should be fully legalised – to many a perfectly reasonable stance on the debate. But it’s her reasoning that makes the suggestion painfully offensive.

Disinterested in the potential social, economic and health benefits of legalising sex work, Hakim suggests that prostitution should be legalised, because the empowerment of women has created what she terms a “male sex deficit.”

In short because men need sex and modern women aren’t providing it.

What selfish creatures we’ve become. All that working and voting and striving for equality? Well apparently it’s led to an international blue-balls crisis that only legalised prostitution can cure.

• Legalise prostitution because 21st Century men need more sex says think-tank

Dr Catherine Hakim says prostitution should be legalised because of the "make sex deficit"  Photo: DAVID BEBBER

The pros and cons of legalised prostitution is an important and necessary debate.

Unfortunately Hakim has overshadowed that conversation by missing the point so spectacularly that one has to wonder if she did it on purpose.

Her theory hinges upon two beliefs.

First, that male libido outstrips female libido two to one; second that the availability of sex has decreased proportionately as women have become more empowered, because women have less cause to trade sex for gain. Offended yet?

According to Hakim, women (especially women over the age of thirty) don’t really like sex at all.

She writes: “Male demand for sexual entertainments and activity greatly outstrips female sexual interest, even in liberal cultures - this gives women an edge, although many are still unaware of it.”

Ah, the tired trope of the sexually disinterested woman. Sigh.

Hakim’s theory entirely ignores the fact that women experience desire and sexuality just as strongly as men. In fact, she’s wrong to compare the two. Male and female libidos do not have to be expressed the same way in order to be equal.

Her primary example of the disparity between our sex drives is strip clubs.

Well, she might be accurate in saying men more frequently attend strip clubs, but just because women don’t tend to enjoy stuffing fivers in thongs as a group activity, it doesn’t mean we don’t get horny.

The sex toy market (which has a predominately female customer base) tells a different story about female desire. In 2012, it was valued at £250 million in the UK, and $5.5 billion (£3.5bn) worldwide. Not to mention the 100 million copies of “mummy porn” Fifty Shades of Grey that have been sold.

Dakota Johnson as Anastasia Steele in Fifty Shades of Grey

Just because female libido is different from male doesn’t mean it’s non-existent.

Hakim believes that as women become more empowered, and therefore more financially independent, they are likely to withdraw sexual availability further. She writes that the “male sex deficit” is likely to grow in the 21st century, as women become increasingly economically independent and withdraw from “sexual markets and relationships that they perceive to offer unfair bargains”.

Which tells you everything you need to know about her attitude towards sex.

No wonder she wants to legalise prostitution. She seems to think every sexually active woman already is one.

But it’s not just women who should be angered by Hakim’s writing. Her representation of men is just as offensive.

“All the available evidence points in the direction of prostitution and erotic entertainments having no noxious psychological or social effects, and they may even help to reduce sexual crime rates”, she writes.

Here, she is hiding behind the illusion of being sex positive. She would like you to think of her as someone who understands male desire better than other women. But this is a woman who once likened male fidelity to being a “caged animal”.

She tacks a reasonable statement about a lack of evidence that prostitution is harmful, on to one that suggests prostitution would reduce the frequently of rape.

What Hakim is actually doing is reducing men to nothing better than animals. Sex mad beasts, unable to control themselves. She’s saying that male desire isn’t desire at all; it’s an untameable impulse that dominates rational thought.

How unbelievably patronising.

  Photo: PA

By suggesting that access to the services of prostitutes would stop rape, Hakim is, however unintentionally, condoning rape as an act.

The message of that statement is that sex is something men need, and that rape is driven by necessity, rather than want. This theory portrays rape like stealing food when you’re starving: a necessary evil.

Perpetuating these myths isn’t just offensive, it’s dangerous. Women have been told for centuries that they don’t like sex, and that their sexuality only exists for someone else’s gratification.

Feminism has seen women take ownership of their sexuality and move towards an equality of gratification. How can Dr Catherine Hakim, in good conscience, promote the concept that a woman who enjoys sex is the exception, rather than the norm?

Worse still is the underlying message that rape is a consequence of sexual frustration. There are no mitigating factors and there are no excuses. Hakim’s suggestion that providing access to sex for money would reduce sexual abuse is no different from suggesting that providing child porn would decrease offenses of paedophilia.

When exploring the reasons that rape happens, the buck stops with the rapist. Just like short skirts, drinking too much or walking home alone, the “male sex deficit” doesn’t cause or entice rape.

Rapists cause rape. Much more than being offensive, it’s frankly terrifying that a supposedly educated and academic woman would try to attribute it to anything else.

The economic case for legalising cannabis

The public wants it and it would be good for the economy. Why has the law not been changed?

Paul Birch in The Telegraph

Channel 4’s Drugs Live programme promises to examine what cannabis does to the brain. Many of us have already seen the clips of Jon Snow struggling after a massive dose of high strength marijuana (the equivalent of forcing a teetotaller to down a bottle of vodka and then asking him how he feels).

But beyond the effects of cannabis on the brain, isn’t it time for a wider discussion on the potential effects of safe, regulated cannabis consumption on society?

How much is cannabis worth these days? According to the Institute for Economic and Research, up to £900m could be raised annually through taxation of regulated cannabis market.

Meanwhile £361 million is currently spent every year on policing and treating users of illegally traded and consumed cannabis.

It seems a lot to spend on punishing people for an activity most of us barely believe should be a crime any more. And that’s even before one factors in the potential benefit legalisation and regulation of cannabis could have for the UK exchequer.

Then, there is the job creation potential. In Colorado, which legalised marijuana at the beginning of 2014, 10,000 now work in the marijuana industry: growing and harvesting crops, working in dispensaries, and making and selling equipment. Crime has fallen: in the first three months after legalisation in Denver, the city experienced a 14.6 per cent drop in crime and specifically violent crime is down 2.4 per cent. Assaults were down by 3.7 per cent.

This reduction led to further savings and allowing stretched police forces to concentrate on more serious issues. Meanwhile, cannabis use by young people actually decreased, an uncomfortable fact for prohibitionists who argue that legalisation would simply encourage more teens to take up cannabis.

In an age when every penny of government spending is fought for, the demonstrated potential savings and revenues at very least deserve serious investigation. Revenue raised from a regulated cannabis trade could be directed towards education on safe use of cannabis.

That’s why the next government – regardless of who it is led by, should set up a Royal Commission into drug legislation.

Why a Royal Commission? Because I firmly believe this is a way forward for our fractured politics. A non-partisan commission can help politicians take hold of an issue and look at the evidence beyond the fears of being blindsided by attacks from the other side. Parties can agree to participate, evidence can be heard, everyday people can submit and read facts, opinions and analysis: it’s a real opportunity to create the “evidence-based policy” to which every party claims they aspire.

Major party leaders are reluctant to grasp the nettle of drug legislation. It’s understandable, given the current association of drugs with criminality. Half of people in the UK think cannabis contributes to street crime. But this association is inevitable as long as cannabis itself is illegal. Only a dispassionate discussion on the merits of cannabis legalisation and regulation can break that link.

Cista is standing for election on this issue because we believe the practical evidence has reached tipping point. Legalisation and regulation of cannabis can benefit the economy, lift the burden on the criminal justice system, encourage education about healthy, informed choices, and help recreational and medicinal cannabis users to enjoy a clean, safe product without being forced to engage with the underworld. Cannabis in itself is not the problem: our current law is. And we’re all paying the price.

It’s economics, stupid - Denying legality to sex work in fact worsens the exploitation

Bachi Karkaria in the Times of India

In 1938, a book hit British stands and smugness — To Beg I Am Ashamed: A Frank and Unusual Autobiography by Sheila Cousins, a London prostitute. It was ghostwritten by Ronald Matthews, with considerable inputs from his more celebrated pub chum, Graham Greene. It was prematurely ejaculated from bookshops under pressure from the home secretary, whose hand was forced by the Public Morality Council. A ‘handsome, sound and tight copy’ of the first edition came recently on the market, priced at $13,165, not only because it was in ‘fine condition’ but because the book’s hasty withdrawal had made it extremely rare.

A less welcome development on the same subject has resurfaced in India where, even in the 21st century, we still get our knickers in a twist whenever the uncomfortable fact of prostitution is forced upon our delicate (read hypocritical) sensibilities.

One seldom agrees with Lalitha Kumaramangalam when, as BJP-appointed chairperson of the National Commission for Women, she defends the indefensible sexist statements of the Sangh Parivar’s rabid rump. But her recent support for legalising sex work makes eminent sense. Predictably, it has led to a decibel level of protest louder than a brothel brawl.

To see, understand and finally accept the merits of such legalisation, we first need to make two clear demarcations. One, we have to rid our minds of the semantic baggage of ‘prostitute’ (or whore, harlot, fallen woman); the noun has become a hiss verb outside its native place. Its loaded subtext of immorality of any stripe puts a mental block in the way of accepting sex work as economic activity — which is precisely what it is for these women (and men and transgenders) grappling with their no-exit destiny.

Two, we need to separate the desirable idea of legalising sex work from the reprehensible idea of legalising exploitation. It is nobody’s case that we legitimise abduction and abuse. But the opponents of legalised sex work deploy this sophistry, mixing up these two entities. We need to fight the predator trafficker and pimp, not their prey. Yes, we have to punish abusive clients too, but, get real guys, in which Utopian age can we seriously expect to implement what the UN’s Palermo Protocols grandly call a ‘demand reduction’ strategy? Abuse reduction is more important, and arguably more doable.

It is the world’s oldest profession, remember? And the need for commercially provided sex hasn’t noticeably changed, despite a range of onslaughts ranging from the fire-and-brimstone brigade to AIDS. Or there’s the Khushwant Singh solution. Addressing a conference called to ‘eradicate prostitution’ in the early 1970s, the irreverent sardar told the starched and genteel assembly, “This will happen only when the amateur drives out the professional.”

More seriously, while tracking the emerging AIDS epidemic in the 1990s, my experience of Mumbai’s sordid red-light district was something of an epiphany, stripping me of my own ignorant prejudice and pettiness. Women have ended up here from various situations — abducted, abandoned, serially sold, or just plain impoverished — but for them this is now work, using their only sweat equity to keep body and soul together, children in school, parents in medicine, whole families in the ‘decency’ which holier-than-thou lofty society denies these breadwinners.

In those AIDS-decimating times, brothels were trapped between life and livelihood. In the early years, they were in denial; madams refused even to put up the NACO posters on safe sex, afraid these would stamp their establishment with HIV’s taint, and scare away clients. Later, there was no hiding from the grim toll which halved the population of those infamous cages.

The new stigma and the prostitute’s ages-old pariah-fication proved a lethal cross-infection, denying them medical help. If legal safeguards had been in place, they would not have been thrown on to the even meaner street, slipped off the radar of surveillance, been forced to sell themselves cheaper — and with no clout to insist on condoms, infected clients who then took HIV home to unwitting wives and unborn children.

So i don’t buy the argument of feminist columnist Rami Chhabra on this page last week which talked of ‘powerful foreign donors (who) backed prostitution’. Yes, there were condom-centric programmes because prophylactics were easier to hand out rather than the more-laborious behaviour change. But this is a cynical argument because condoms — compulsorily and correctly used by high-risk communities — were the first line of defence. The red-haired Australian Cheryl Overs, who switched to law to fight AIDS gave me a pithy quote: ‘A condom is to a brothel what a hard hat is to a construction site: essential safety equipment.’

One can ignore the sanctimonious unwashed who persist with the immorality argument and/or are in unredeemable denial about the sexual ‘need’ of the client, let alone the less escapable economic one of the prostitute. There’s even one lot which denounces the term ‘sex worker’ because it ‘debases legitimate workers’.

But what’s the excuse of aware feminists who refuse to accept the economic reality, spout ‘bodily integrity’ and continue to oppose legalisation on grounds of exploitation? Be logical ladies, if we don’t provide that vital umbrella, how can the sex worker challenge the sexual violence which rains down on her with such impunity?