Theoretical Justice can be seen throughout the history of the English legal system, and it continues to this day. In this time of unprecedented cutbacks to all essential services, the law has not escaped uninjured. Legal aid has seen dramatic cuts in funding, to the point where (as highlighted by the New Statesman) some newly qualified lawyers struggle to make ends meet.[i]

Access to justice is now reserved for those wealthy enough to afford it. Justice in the modern era is more about the financial implications than what is right or just. There are plenty of examples of Theoretical Justice, however in this article we will explore just one, the Doctrine of Coverture.

Through Coverture a woman lost her legal entity, meaning she lost her capability of acting in a legal capacity for herself. Relegating her to the position of agent for her husband and household, therefore depriving her of her own legal entity. Although women do technically have recourse, few would be able to access justice without great personal sacrifice. Therefore, a woman’s freedom and rights relied upon a benevolent patriarchal figure to allow her to conduct commonplace activities. It must be noted that in practice women did engage in the economic sphere. However, this engagement could easily be denied, ‘a husband… [could] take public steps to deny her the use of his credit…’[ii] thus shaming her and ruining her social standing in a highly judgemental society. A woman’s reputation was one of the few things that she intrinsically owned and the importance of maintaining her good reputation is a fundamental theme in the contemporary literature. See any Jane Austen novel, or adaptation and you can see this theme. This was a world where it was better for a 15-year-old girl to marry a debt-ridden, gambling philanderer that was nearly twice her age[iii], than it was for her to be seen as flirtatious, essentially a teenager.

The law did provide the Theoretical Justice that ‘‘every man is bound to provide for his wife in the necessaries of raiment according to his circumstances.’[iv] However, millinery goods were described as ‘mere trappings.’ To women clothing represented more than ‘mere trappings’, they were a conduit for identity and independence, a key tool for the expression of opinions and views that would be frowned upon if publicly broadcast. Clothing provided a means of showing the world your intrinsic agency as a human being. Women were expected by society to maintain their appearance, just as women are today, and for some failing to meet this expectation could have personal and social ramifications, it could impact their own good reputation. The law failed to understand the importance of individual economic agency as means of personhood, and for the rationale behind the spending habits of the sexes. Crucially, the law forgot the importance of money in the pursuit of justice.

Moving forward a few centuries and we can see Theoretical Justice emerge again with the onslaught of legal aid cuts. Now as then, society has forgotten the impact that money has on justice. For context, the government guideline hourly rate for a non-London based trainee solicitor is £111.[v]  For most litigants, legal aid will not be available in civil matters, and where it is available it is often unclear to a potential litigant whether the costs, or part thereof, will be covered. Further readers should take a look at the Government guidelines and see how many times the phrase ‘may be eligible’ appears.[vi] The lack of clarity could be seen as terrifying for a potential litigant, especially considering that it is not uncommon for legal cases to take years. It is easy to see how the pursuit of justice could easily bankrupt an individual, something which wealthy individuals and organisations are fully aware of. They bank on the fact that justice is expensive and therefore inaccessible.

Theoretical Justice has always been used as a way to deny intrinsic agency to marginalised groups, whether they be the women of the 18^th century or the working classes of our own time. The problem of Theoretical Justice has not gone away, if anything, it now has the ability to create widespread injustice to all but the economically well off. Falling victim to Theoretical Justice is not just the fate of the poor, but the fate of anyone without sufficient disposable income to meet the rising costs of justice.

[i] https://www.newstatesman.com/politics/uk/2020/05/covid-19-criminal-justice-barristers-earning-legal-lockdown

[ii] Bailey, J., 2002. Favoured or oppressed? Married women, property and 'coverture' in England, 1600-1800. Continuity and Change, 17 (3), 351–372.

[iii] Reference to the character George Wickham in Austens’ Pride & Prejudice

[iv] The York Chronicle, 18 July 1793, 2, as found in the above article.

[v] https://www.gov.uk/guidance/solicitors-guideline-hourly-rates

[vi] https://www.gov.uk/check-legal-aid

Further Reading;

• Lord Woolf’s Inquiry: Access to Justice (July 1996)
• Favoured or oppressed? Married women, property and 'coverture' in England, 1600-1800 by J Bailey
• Women and their Money 1700-1950, Essays on women and finance. Edited by A Laurence
• https://www.bbc.co.uk/news/uk-46357169
• https://www.bbc.co.uk/news/uk-50923289
• https://www.theguardian.com/commentisfree/2018/aug/12/the-guardian-view-on-legal-aid-cuts-have-caused-chaos-and-must-be-reversed