7th August 2021
This is a depressing post about law and policy, but it is one which is triggered by work I am doing on a particular project.
One of the things that I am researching and writing is about how lawyers made possible slavery and the slave trade – a topic that I wrote about at Prospect magazine, as well as in previous posts on this blog and on Twitter (see here and here).
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Of course: human beings are capable of being cruel to other human beings without laws or lawyers.
An individual person can coerce another person, can torture another person, can expropriate the possessions of another person – and so on – without any legal system or advisers in place.
That, unfortunately, appears to be the nature of our species – at least given the archaeological and historical record.
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For enslavement, torture, expropriation – and so on – to exist in any organised society (that is, say, a human grouping larger than Dunbar’s Number) requires the help of norms and rules.
Either such practices will not be prohibited or such practices will be positively facilitated.
In other words: slavery, torture and imperialism in any society depend on systems of rules being in place that enable them.
And in such modern societies, where the practice of law is usually a distinct profession, this in turn means that such practices are facilitated by lawyers.
Lawyers draft the relevant legal instruments, and lawyers then advise those who seek to rely on legal rights as set out in those instruments and otherwise.
And many of these lawyers did so (and some still do, for example, with the torture memoranda in the United States) with absolute moral neutrality – they are not here to gainsay the law, but to advise on what one can get away with under the law.
A similar legal infrastructure exists still in respect of defending the police and other state actors in respect of coercion and lethal force against civilians.
None of this – from slavery to systemic police brutality – none of this would be possible, but for laws and those who make those laws work.
Of course: the saving grace is that there are laws which (supposedly) prohibit each of these things, and there are lawyers who will challenge such laws and defend those affected.
And such liberal and progressive laws and lawyers should be celebrated.
But.
It has to be laws and lawyers which take on slavery, torture, imperialism, police brutality – and so on.
And this is because such things only exist in any organised society because of laws – and often lawyers – in the first place.
All that liberal and progressive laws and lawyers are taking away are what other laws and lawyers provided in the first place.
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If you are a lawyer you ought to give impartial advice to your clients, or employers. If you don’t like what they are doing you ought to try to persuade them to change it, or leave and work elsewhere. You can’t give misleading advice, or refuse to advise, just because you disagree with their actions.
Do you agree with this?
Blaming the lawyer is like blaming the gun, not the owner.
I fear your gun – like you – has missed its target
Nothing in my post says otherwise: I am stating that such lawyering facilitates the wrong, and – in turn – nothing in your comment says otherwise
Taking your point at its very highest: such lawyering is still facilitation
I agree with you. Perhaps I didn’t put things clearly. You say that the gun facilitates the shooting. Without it the shooting wouldn’t happen.
Without cooperative lawyers bad laws, like slavery, can’t happen. We must choose where to use our skills wisely.
Yes, but the laws are made by politicians and once made they are the law, however bad they may be. The lawyer does not ‘facilitate’ wearing his lawyer hat. If he chooses to act he has to apply the law as it is. In this regard he has no choice. He facilitates wearing his human being hat, by choosing, in the exercise of his free will, to act rather than declining to act. It’s an issue of personal morality and conscience — not law. It doesn’t make any difference whether he is a lawyer or a person who chooses to own a slave.
John Woolman (an American Quaker growing up just before the US Civil War) showed how law and conscience can bolster each other where there’s a will to do so.
A dying client asked Woolman (a respected neighbour) to prepare his will. Woolman did so – but explained for conscience sake he couldn’t put in the clause by which the man gifted his slave to his son. Therefore Woolman had written out every other part of the will and would give it to the client free of charge .
Having been challenged – possibly for the first time in their lives – about the moral legitimacy of slave ownership by someone who felt strongly enough to forgo his fee rather than facilitate it, the client and his family decided to free the slave.
A very small incident – but it helped build over time the culture change in the USA necessary to make slavery intolerable.
If a sovereign legislature makes a law stating that, notwithstanding any existing law to the contrary (eg human rights, equality) slavery is lawful what can a lawyer do, as a lawyer, but accept that law and apply it?
This is where conscience and one’s sense of morality comes in. The lawyer, as a human being, must then decide whether his conscience will allow him to participate in applying that law. But I don’t think you can blame the lawyer for slavery being lawful. The blame would lie with the politicians and/or the electorate who voted for them.
“what can a lawyer do, as a lawyer, but accept that law and apply it?”
I think the point of the posting is that the law comes from, is enabled by, and enforced through, lawyers. Not God or other sentient beings.
We all, including lawyers, have freedom of choice. So the idea of “What to do? It’s the law.” is wrong. Lawyers must owe up to their moral choices.
And that nice phrase, “as a lawyer” does not pass. A profession is sub to being a member of a society or being a high moral individual.
I agree with you. I think you have to read my whole comment and not just one sentence.
I too think it’s laws more than lawyers.
But lawyers/judges have an important responsibility in common law systems or, in civil law systems, at the margin where issues of constitutionality are involved.
Making leg irons is one thing, putting spikes on the inside – an added refinement or a despicable misuse of the blacksmith’s skill? Careful study of software systems is one thing, infiltrating spyware into NGOs and journos something a little different. Selling a ‘zero day exploit’ or a leg iron or legal sophistry is not a morally neutral act.
The US torture files did illustrate the willingness of lawyers to strive officiously to stretch the meaning of robust treatment well beyond breaking point. Why do it? Because of an existential threat – or the money – or the intellectual challenge. Plainly the excuse – its legal – is a weak one, somewhere a moral dimension comes in – would you be happy telling your mother what you do?
Suppose we take a nice clean well scrubbed young lawyer and put him/her into a not so nice government department. Will there be some kind of induction process, a selection for moral flexibility. A ‘getting used to’ the trade, a slow build up to the nastier end of that department’s operations. Gradually hidden behind layer upon layer of legally sanctioned secrecy and national interest. In other words grooming.
But, the world really does contain some nasty people who would do individuals and society harm and not be too fussy about how they do it. Sometimes we will have to pay people to play rough and that is where the trouble starts. The message from the dungeon workers must be – NO – and not just because someone is watching.
i am not sure I share your view. For sure lawyers and law
have a symbiotic relationship as both are needed in a society to make Laws work. But in my view it is the society that kind of defines what should be law or acceptable behavior. From the 70 till today we have adapted constantly our Laws or changed them to what is acceptable in Society. Just take the laws dealing with discrimination of Woman as an example, be it in Work and or what is or is not their duty while married. It was pressure from society that made the Politicians change the Law, not lawyer’s or Law itself
“None of this – from slavery to systemic police brutality – none of this would be possible, but for laws and those who make those laws work.”
So there is no slavery and systemic police brutality in lawless places like Somalia and our mediaeval past? Or have I misunderstood what you are saying?
‘Or have I misunderstood what you are saying?’
You have.
“Such things [slavery, torture, imperialism, police brutality] only exist in any organised society because of laws – and often lawyers – in the first place”. That won’t do- it’s too easy to find historical counterexamples. Unless you casuistically define an organised society as one that required the laws before it embarked on such things. Even then it’s a struggle. Slavery in Rome (as an early organised society that had laws around slavery) certainly preceded the laws around it. Torture has largely in modern times existed extra-legally. Police brutality – ditto. Imperialism? come on, conquest and the creation of empires didn’t require lawyers. Armies (or navies) were quite handy. Diplomats to seal the deals. Lawyers – no. They simply follow in the baggage train.
‘That won’t do’
I am afraid it will have to do.
In an organised society, slavery requires that the rights of ownership and transfer are recognised and enforceable.
In an organised society, the practice of torture requires protections for the torturer and the removal of rights for the tortured.
In an organised society, imperialism will rely on hundreds if not thousands of decisions and rules which will need to be recognised and enforceable, for the investments and risks required.
In an organised society, police brutality requires immunity for the police brutes and a lack of legal protection for the brutalised.
And so on, and so on.
Even in societies without written legal codes, such as the ones you mentioned, the rules and norms were still there.