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(12) Law

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LAWYERS

Civil lawyers

Lawyers in the civil law world differ fundamentally from their common law colleagues. Indeed, the very concept of a legal profession in the major civil law jurisdictions of Europe, Latin America, Japan, and Scandinavia is problematic. In the words of a leading authority on the subject, ‘The common law folk concept of “lawyer” has no counterpart in European languages …’ Civil law jurisdictions recognize two categories of legal professionals: the jurist and the private practitioner. The former comprises law graduates, while the latter, unlike the position in common law countries, does not represent the nucleus of the legal profession. Instead, ‘other subsets of law graduates take precedence – historically, numerically, and ideologically. These include the magistracy (judges and prosecutors) … civil servants, law professors, and lawyers employed in commerce and industry.’ Students in civil law countries typically decide on their future after graduation. And, as mobility within the profession is limited, in many jurisdictions this choice is likely to be conclusive. They may choose to pursue the career of a judge, a public prosecutor, a government lawyer, an advocate, or notary. Private practice is therefore generally divided between advocates and notaries. The former has direct contact with clients, and represents them in court. After graduating from law school, advocates normally serve an apprenticeship with experienced lawyers for a number of years, and then tend to practice as sole practitioners or in small firms.

 

To become a notary usually requires passing a state examination. Notaries draft legal documents such as wills and contracts, authenticate such documents in legal proceedings, and maintain records on, or provide copies of, authenticated documents.

Government lawyers serve either as public prosecutors or as lawyers for government agencies. The public prosecutor performs a twin function. In criminal cases, he prepares the government’s case; while in certain civil cases he represents the public interest.

 

In most civil law jurisdictions, the state plays a considerably more significant role in the training, entry, and employment of lawyers than is the case in the common law world. Unlike the traditional position in common law countries where lawyers qualify by serving an apprenticeship, the state controls the number of jurists it will employ, and the universities mediate entry into private practice.

 

There are important differences between the two systems in respect of the organization of legal education. Broadly speaking, in most common law jurisdictions (with the conspicuous exception of England – and Hong Kong), law is a postgraduate degree or, as in Australia, New Zealand, and Canada, may be combined with an undergraduate degree in another discipline. In the civil law world, on the other hand, law is an undergraduate course. While the common law curriculum is strongly influenced by the legal profession, the state in civil law jurisdictions exercises a dominant function in this respect. The legal profession in most common law countries administers entry examinations, whereas, given the role of universities as gatekeepers, further examinations are generally redundant, and a law degree suffices.

 

The function of gate keeping in common law countries tends to be discharged by apprenticeship with a private practitioner. So, for example, an aspiring barrister must pass the Bar examinations in required to serve two six-month pupilages in chambers, attending conferences with solicitors conducted by his pupil master (a more senior barrister), and sitting in court, assisting in preparing cases, drafting opinions, and so on. Pupilage is usually unpaid, although they may now be funded so as to guarantee the pupil’s earnings up to a fixed level. During the second six months of pupilage, the barrister may engage in limited practice and be instructed in his own right. With the exception of barristers, lawyers in private practice operate as members of a firm whose size may vary from a single lawyer to mega-firms of hundreds of lawyers.

 

Regulation of the profession

 

Bar Associations, Bar Councils, and Law Societies are among the numerous organizations that supervise the admission, licensing, education, and regulation of common lawyers. The civil law prefers the term ‘advocates’ (which more accurately describes their principal function and their counterpart organizations are dubbed Chambers, Orders, Faculties, or Colleges of Advocates).

 

Though their designations differ, they generally share a concern to limit the number of lawyers in practice, and defend their monopoly.

In certain jurisdictions (particularly small ones like Belgium and New Zealand), lawyers are admitted and regulated at the national level. Federal states (such as the United States, Canada, Australia, and Germany) inevitably exercise provincial or state regulation.

 

Italian lawyers are admitted at the regional level. While regulation in some countries is undertaken by the judiciary and, under its aegis, an independent legal profession, lawyers in other jurisdictions, especially in the civil law world, is subject to government control in the shape of the Ministry of Justice.

 

 

Lawyers in court

 

The lawyers have twisted it into such a state of bedevilment that the original merits of the case have long disappeared from the face of the earth. It’s about a Will, and the trusts under a Will – or it was, once. It’s about nothing but Costs, now. We are always appearing, and disappearing, and swearing, and interrogating, and filing, and cross-filing, and arguing, and sealing, and motioning, and referring, and reporting, and revolving about the Lord Chancellor and all his satellites, and equitably waltzing ourselves off to dusty death, about Costs. That’s the great question. All the rest, by some extraordinary means, has melted away.

Charles Dickens, Bleak House, Chapter VIII

 

 

Legal aid

 

Many societies grant legal aid to persons incapable of paying for a lawyer. The right of access to justice rings hollow without the provision of free legal advice and assistance to the poor, especially in criminal cases. Even in respect of civil litigation, however, elementary norms of fairness would be undermined where an impecunious defendant is sued by an affluent plaintiff or the state.

Any semblance of equality before the law is thereby shattered. The cost involved (to both the state and the individual seeking legal aid) generally results in preference being given to assisting those charged with criminal offences, though some jurisdictions supply free legal aid in civil cases. Certain systems of legal aid provide lawyers who are employed exclusively to act for eligible, impoverished clients. Others appoint private practitioners to represent such individuals.

 

Gideon’s right to representation

 

Gideon was charged in a Florida state court with having broken and entered a poolroom with intent to commit a misdemeanor. Appearing in court without funds and without a lawyer, he asked the court to appoint counsel for him. The following dialogue took place:

The Court: Mr Gideon, I am sorry, but I cannot appoint Counsel to represent you in this case. Under the laws of the State of Florida, the only time the Court can appoint Counsel to represent a Defendant is when that person is charged with a capital offense. I am sorry, but I will have to deny your request to appoint Counsel to defend you in this case.

Gideon: The United States Supreme Court says I am entitled to be represented by Counsel.

Gideon conducted his own defense, was convicted, and sentenced to five years’ imprisonment. He then appealed on the ground that the trial court’s refusal to appoint counsel for him denied him rights ‘guaranteed by the Constitution and the Bill of Rights by the United States Government’. The State Supreme Court rejected his appeal. From his prison cell, Gideon appealed to the US Supreme Court on the ground that he had been denied counsel and therefore that his rights under the Fourteenth Amendment had been violated without due process of law. He was assigned a prominent lawyer, Abe Fortas (later appointed a Justice of the Supreme Court). The court held that the right to the assistance of counsel was a fundamental right, essential for a fair trial, thus emphasizing the procedural safeguards required for due process of law.

The defendant’s wealth or educational standing should be irrelevant to the question of legal representation. The case was remanded to the Supreme Court of Florida for ‘further action not inconsistent with this decision’. Gideon was retried, this time with legal representation, and was acquitted.

 

The future of the law

 

Law, like war, appears to be an inescapable fact of the human condition. But what is its future? The law is, of course, in a constant state of flux. This is nicely expressed by the illustrious American Supreme Court Justice Benjamin Cardozo:

 

Existing rules and principles can give us our present location, our bearings, our latitude and longitude. The inn that shelters us for the night is not the journey’s end. The law, like the traveler, must be ready for the morrow. It must have a principle of growth.

In a rapidly changing world, growth and adaptation are more pressing than ever if the law is to respond adequately to the new threats as well as novel challenges it faces. The character of law has unquestionably undergone profound transformations in the last 50 years, yet its future is contentious. Some argue that the law is in its death throes, while others postulate a contrary prognosis that discerns numerous signs of law’s enduring strength. Which is it? Curiously, there is some truth in both standpoints.

 

On the one hand, though reports of the death of law have been exaggerated, there is ample evidence of the infirmity of many advanced legal systems. Symptoms include the privatization of law (settlement of cases, plea-bargaining, ADR, the spectacular rise of regulatory agencies with wide discretionary powers, and the decline of the rule of law in several countries). On the other hand, there has been a revolution in the role of law that suggests it is both resilient and robust. This transformation includes the extension of the law’s tentacles into the private domain in pursuit of efficiency, social justice, or other political goals; the globalization of law and its internationalization through the United Nations, regional organizations, and the European Union; and the massive impact of technology on the law.

 

1. Law and change

 

Various attempts have been made to chart the course of legal development. Legal historians have sought to identify the central features in the evolution of law, and, hence, to situate different societies along this continuum. In the late 19th century, the eminent scholar Sir Henry Maine contended that law and society had previously progressed ‘from status to contract’. In other words, in the ancient world individuals were closely bound by status to traditional groups, whereas in modern societies individuals are regarded as autonomous beings, they are free to enter into contracts and form associations with whomever they choose.

 

But some detect a reversal in this movement, and that in many instances freedom of contract is more apparent than real. For example, what choice does the consumer have when faced with a standard-form contract (or contract of adhesion) for telecommunications, electricity, or other utilities? And where is the employee who, when offered a job and presented with a standard-form contract by his multinational employee, would attempt to renegotiate the terms? It is true that many advanced legal systems seek to improve the bargaining position of the individual through various forms of consumer protection legislation. Yet when a lightweight steps into the ring with a heavyweight, the outcome is rarely in doubt. Has ‘status’ returned in the shape of consumer or employee?

 

The growth of legal systems also exercised the minds of social theorists. The ideas of Max Weber have exerted a powerful influence on thinking about law and its development. He developed a ‘typology’ of law based on the different categories of legal thought. At its heart is the idea of ‘rationality’. He distinguishes between ‘formal’ systems and ‘substantive’ systems.

 

The core of this distinction is the extent to which a system is ‘internally self-sufficient’, i.e., the rules and procedures required for decision-making are available within the system. Second, he draws a distinction between ‘rational’ and ‘irrational’ systems.

 

This describes the manner in which the legal rules and procedures are applied. The highest stage of rationality is reached when all legal propositions constitute a logically clear, internally consistent system of rules under which every conceivable fact or situation is included.

 

 

Weber gives as an example of a formally legal irrational system the phenomenon of trial by ordeal where guilt is determined by an appeal to some supernatural force. An example of substantive legal irrationality is where a judge decides a case on the basis of his personal opinion without any reference to rules. A decision of a judge is substantively rational, according to Weber, when he refers not to rules but moral principles or concepts of justice.

Finally, where a judge defers to a body of doctrine consisting of legal rules and principles, the system constitutes one of formal logical legal rationality. It is towards this ideal type that Weber’s theory of legal evolution progresses.

 

In many societies, however, Weber’s model of a rational, comprehensive, and coherent legal system is undermined by the rapid rise in administrative control. There has been a colossal expansion in the jurisdiction of administrative agencies. These bodies, normally creatures of statute, are vested with extensive discretionary powers. In some cases, their decisions are explicitly exempted from judicial oversight.

In several European countries, for example, the privatization of formerly nationalized industries (such as utilities and telecommunications) has spawned a host of regulatory agencies with powers to investigate, make rules, and impose penalties. The common courts may be marginalized, and hence the role of law itself becomes distorted. This development represents a threat to the authority and openness of courts. Moreover, the enlargement of discretionary powers emasculates the rule of law’s insistence on the observance of clear rules that specify individual rights and duties. Discretionary regulation resembles Weber’s notion of substantive legal rationality, while the ideology of the rule of law represents formal legal rationality.

 

Among the more radical theories of legal development is the Marxist idea that law is ultimately doomed to disappear entirely. This prediction is grounded in the idea of historicism: social evolution is explained in terms of inexorable historical forces. Marx and Engels propounded the theory of ‘dialectical materialism’ which explains the unfolding of history in terms of the development of a thesis, its opposite (or antithesis) and, out of the ensuing conflict, its resolution in a synthesis. Marx argued that each period of economic development has a corresponding class system. During the period of hand-mill production, for instance, the feudal system of classes existed. When steam-mill production developed, capitalism replaced feudalism. Classes are determined by the means of production, and therefore an individual’s class is dependent on his relation to the means of production. Marx’s ‘historical materialism’ is based on the fact that the means of production are materially determined; it is dialectical, in part, because he sees an inevitable conflict between those two hostile classes. A revolution would eventually occur because the bourgeois mode of production based on individual ownership and unplanned competition, stands in opposition to the increasingly non-individualistic, social character of labour production in the factory. The proletariat would, he predicted, seize the means of production and establish a ‘dictatorship of the proletariat’ which would, in time, be replaced by a classless, communist society in which law would eventually ‘wither away’. Since the law is a vehicle of class oppression, it is superfluous in a classless society.

This is the spirit of the argument first implied by Marx in his early writings and restated by Lenin. In its more sophisticated version the thesis claims that, following the proletarian revolution, the bourgeois state would be swept aside and replaced by the dictatorship of the proletariat. Society, after reactionary resistance has been defeated, would have no further need for law or state: they would ‘wither away’.

But this cheerful prognosis is based on a rather crude equation of law with the coercive suppression of the proletariat. It disregards the fact not only that a considerable body of law serves other functions, but that, even, or especially, a communist society requires laws to plan and regulate the economy. To claim that these measures are not ‘law’ is to elicit incredulity.

Whatever theory is adopted to explain the manner and form of legal change, it is impossible to deny that the future of law is beset with a host of thorny challenges. Where might the greatest difficulties lie?

 

 

 

 

 

 

 

 

 

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