Prof Brian Tamanaha, from Washington University of St Louis, is a leading voice in jurisprudence — the philosophy and theory of law.
In Dunedin to speak to the Law and Society Association of Australia and New Zealand conference, Prof Tamanaha will today give a keynote address entitled "A Social Historical Perspective of Law Within Society".
The law operated through all levels of society, Prof Tamanaha told the Otago Daily Times.
"In many ways it does good things, it creates order, but in many ways it does not do so good things. I have attempted to expose both the good and the bad — it’s not a one-sided thing.
"Many legal theorists only focus on the positive functions or benefits, but the reality of law is quite different."
A prime example of that was the experience of the poor and minorities when they came to deal with the legal system, he said.
While modern society had created a system where the law lay behind everything — which was good — the reality was that not everyone could access the law.
"We in theory have a system of equality but in reality we have unequal enforcement of the law," Prof Tamanaha said.
Recent examples such as the Black Lives Matter campaign highlighted this in criminal law, he said.
In civil cases, there was no shortage of lawyers: Prof Tamanaha wrote a controversial 2012 book, Failing Law Schools, which argued law schools were turning out graduates with student debt so high they could not afford to take anything but the highest-paying jobs.
This Catch-22 meant those lawyers could not afford to work for what poor clients could afford to pay them.
Poor clients "either represent themselves, or they give up", Prof Tamanaha said.
"All of our transactions exist on a background legal fabric, usually based on contract law but also property law and regulation. It is fixed for the most part.
"This background fabric allows us to fulfil the transactions of modern society — we can haggle price but you don’t get to change the terms.
"It is an infrastructure for interaction, just like roads are infrastructure. It allows to have a certain amount of implicit trust in our transactions, which is good ... but the bad part is that it creates a cost to using the legal system when things go wrong."
• Prof Tamanaha will speak at St David Lecture Theatre at the University of Otago at 11am today.
