8th August 2021
Today’s post is, in effect, a footnote to yesterday’s post on laws and systems – what connects slavery, torture, imperialism, police brutality and so on.
The reason for this post is that some commenters responded to yesterday’s post as if my primary purpose were to impose blame on lawyers for their role in the facilitation of slavery, torture, imperialism, police brutality and so on.
Lawyers were only doing their job, the responses went, and so it was rather unfair of me to blame them.
All they were doing was advising on the law, and that is what is lawyers do.
I was being unfair, the response averred.
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Such a protest is, in my view, to confuse positive and normative statements.
The existences of slavery, torture, imperialism, police brutality, and so on, in any organised society does – as a matter of positive fact – require the involvement of those who make and deal with laws.
This is simply because such things can only exist in an organised society if they are permitted – or at least recognised – by law.
And in modern societies, there is often a distinct profession for those who practise in laws: lawyers.
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Whether any lawyers – individually or collectively – should be regarded as culpable for recognising or permitting activities is a separate and distinct argument to the one advanced in yesterday’s post
There may, for example, be a ‘cab rank’ rule which obliged lawyers to make submissions to court that they personally did not agree with.
Or the world-view of the time and place may have meant that, say, slavery, torture, or imperialism were not morally contested – and so it may be that it would not be historically fair to regard the lawyers enabling such activities as being especially culpable.
But even taking such normative points at their highest, there remains the positive and undeniable fact.
That is the positive fact that slavery, torture, imperialism, police brutality, and so on, can only exist in any modern society because they are facilitated by those who deal with and practice in law.
And this remains true – even if we can excuse (or find excuses for) individual lawyers who participate(d) in recognising or permitting such activities.
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There IS a cab rank rule — not “there may be”.
And if there’s an argument which can be properly advanced that some morally repugnant activity is lawful because parliament has authorised it, is it not the duty of a lawyer in a state governed by the rule of law to be prepared to advance such an argument in defence of an accused person?
The lawyer may prefer not to act because of his moral principles, but if a cab rank rule did not exist would the accused person not risk being denied a fair trial under an acceptable system of justice which, after all, is a vital element of a free democracy?
Not all lawyers are barristers, and solicitors do not have a cab-rank rule. And in England the majority of the legal profession are solicitors (including, fwiw, me).
A thing does not become true just because you put ‘is’ in block capitals.
“… slavery, torture, imperialism, police brutality, and so on, can only exist in any modern society because it facilitated by those who deal with and practice in law.”
In fact any activities undertaken within a complex modern society can only exist within context of the rule of law, which of course is facilitated by those who practise law.
The key issue is the *origin* of the law. Lawyer do not themselves *make* law (although they will be engaged in drafting); the law is the cumulative codification of the *will of the legislature*, not the will of lawyers.
If we accept the concept of the rule of law, then we, as citizens or lawyers, cannot pick and choose which laws to obey or defy. However, we have the ability, and indeed duty, to protest where we observe injustice in either the formulation or execution of the law, with the objective of achieving legislative change through the democratic process.
I am immensely grateful to campaigning lawyers who harness their professional expertise with their moral principles to highlight injustice and thereby use the legal system to hold the powerful to account and seek legislative change where appropriate. Meanwhile, the law, such as it is at any point in time, is there to be applied.
It seems to be intrinsic to the human condition to derive normative statements from positive statements, with or without any attempt at careful argument. And I suppose, by extension, to derive exculpatory arguments from positive statements about history. Which arguments we may or may not wish to take into account.
But it’s also possible to make positive statements about the historic circumstances in which some lawyers have worked, and for them to carry an implicit normative weight.
I’m thinking, for example, of Hans Litten, who cross-examined a prominent figure at great cost to himself, when many had said he ‘should not, or even ‘must’ not. There have been very many Hans Littens, around the world. They faced clear obligations, but did not acquiesce.
It’s a bit metaphysical, I guess, but some would argue that sometimes the most accurate positive statement we can make, in particular circumstances, is that things are not as they should be; that they should be different. A bit metaphysical perhaps, but then again perhaps something like that was in Litten’s mind.
Truth is beauty and beauty is truth. Weapons manufacturers argue that they provide weapons for self defence….
David,
I think some of us are wondering whether the part of your statement that concerns lawyers requires some qualification.
– Police brutality in Myanmar?
– the very recent history of Hungary and Poland and similar transitions : are (were) lawyers necessarily involved at the initial stages when laws are passed? I guess they were, but is it a necessity?
If you mean to actually say “it is most often the case”, I totally agree. But I think you mean “necessarily” in which case I am not sure the categorisation is useful from a theoretical perspective. Wherever there are laws it is tautologically true that lawyers are involved in their application. But whether your categorisation has bite depends on whether they are necessarily involved in the drafting and passing of the legislation. Or police brutality in the absence of the introduction of new legislation for that matter (with or without the declaration of a state of emergency).
I have published your comment for the benefit of others, in case others can make sense of it – but (without snark) I cannot make sense of it, and I was wondering if you could kindly re-cast it?
No snark intended. My comment was very much along the lines of Nigel Nott’s. Lawyers are not necessarily involved at the *origin* of the law or police brutality. Necessarily is the crucial qualifier, because we agree that often they are.
Today, 9 August, is the 50th anniversary of Operation Demetrius, internment without trial in N Ireland. Several hundred people were rounded up and some detained for years; the intelligence was flawed and out of date, and many had no involvement with terrorism.
The relevant point here is this; around a dozen of these men were subject to the “five techniques” of “deep interrogation”. Years later, it was ruled that the techniques were cruel and degrading, but did not amount to torture.
I find it hard to accept that this was not torture; as there were court rulings, there will have been some lawyers arguing that this was not torture.
This happened within the UK, but far enough away from London to be barely visible. Could this have happened in Finchley?
More here: https://en.wikipedia.org/wiki/Five_techniques
In the Ireland v UK case (5310/71) the European Court of Human Rights was asked to rule whether the so-called “five techniques” were prohibited by Article 3 of the European Convention on Human Rights, which says in an unqualified manner: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Both torture and inhuman or degrading treatment are prohibited by that single Article of the Convention, in exactly the same manner. You can understand why, just a few years after the end of the Second World War.
So, what exactly is prohibited by Article 3 and what isn’t? Is solitary confinement “torture” or “inhuman or degrading treatment”, for example? Who decides, if people disagree?
Courts – that is, in the main, judges – are often asked to determine whether a fact pattern matches a term used in a legal document. In this case, the questions are, for the purposes of the Convention, “what is torture?” and “what is inhuman or degrading treatment or punishment?”.
The European Commission of Human Rights found in a long report that the “five techniques” involved both torture and inhuman or degrading treatment. While the UK did not contest the Commission’s findings, the Court disagreed. At paragraphs 167 and 246 (link below) the Court ruled by majorities that the five techniques were “inhuman or degrading treatment or punishment”, but they were not “torture” because they “did not occasion suffering of the particular intensity and cruelty implied by the word torture” as the Court understood the term.
You get a sense of the issues that this sort of case raises by looking at the different opinions added by some of the judges, some favouring a finding of torture and some not, at the end of the report here: https://www.bailii.org/eu/cases/ECHR/1978/1.html
Incidentally, the UK was represented by a stellar range of lawyers – including Anthony Lester, Nicolas Bratza, Brian Hutton, Samuel Silkin. Perhaps driven by a change of UK government since 1970, they did not argue there was no torture or no inhuman or degrading treatment, but rather they say that the “five techniques” have not been used for several years and will not be used again, and so submit that a court ruling is not necessary. (This seems to me to be analogous to the fine line that defence lawyers face when their client admits the facts of the offence to the lawyer but won’t plead guilty in court: the lawyer can ensure a fair trial and test the evidence, and mitigate, while taking pains to avoid misleading the court.)
The ECHR was given the opportunity to revisit its 1978 decision some 40 years later, when new evidence emerged, but declined.
So there we are. Reasonable people can reasonably disagree about whether the Court was right or wrong.
Perhaps a more interesting question is how and why UK ministers approved these techniques in the first place. Some years later, a letter from Merlyn Rees mentioned Lord Carrington, who was Secretary of State for Defence from 1970 to 1974. https://www.bbc.co.uk/news/uk-northern-ireland-27714715
You could compare to the Greek case, after the 1967 military coup, when perhaps 200 or more detainees were systematically beaten, electrocuted, and put through mock executions, and five reportedly died. https://en.wikipedia.org/wiki/Greek_case
‘Perhaps a more interesting question is how and why UK ministers approved these techniques in the first place.’
Well, quite.
Lawyers are people, no better and no worse. Some are good, some are bad. Most are good and bad in different ways to different extents. Few are moral paragons.
Yes, some lawyers have supported or advocated for illiberal laws or regimes. There are odious examples, such as Roland Freisler.
Others may be fellow travellers with illiberalism who, as you say, “facilitate(d) slavery, torture, imperialism, police brutality, and so on”.
Many aren’t. I’d suggest most lawyer are inherently cautious and careful – what you might call conservative (with a small c) – but also inherently in favour of legal rights and the rule of law. They tell their clients what the law is (or at least, what in their opinion the law is) and not what the law should or could be in an ideal world.
And there are numerous examples of lawyers who have tried to push back against the iniquities of their time and place, or campaigned against them, at great personal cost.
Should we condemn everyone who does not actively oppose or resist? It may be an interesting thought experiment to consider what one might have done as a lawyer in 1930s Germany or in Soviet Russia, or would do today as a lawyer in Poland or Turkey or Hong Kong.
‘Should we condemn everyone…’
My post makes no condemnation – that would be for a normative post that is not the one above. The post above merely describes that laws (and lawyers) are indispensable to the activities listed.
At risk of going on rather too long, perhaps it might help to break this down to see where we diverge.
As I see it, you are asserting a number of things as facts: (1) our society can only exist because it has laws; (2) all manner of very bad things (“slavery, torture, imperialism, police brutality, and so on”) did once or still do happen in our society; (3) those bad things only exist as recognisable concepts in our society because they are acknowledged by the law; (4) lawyers are practitioners in the field of the law; and then finally (5) those bad things “can only exist in any modern society because it[**] facilitated by those who deal with and practice in law” – that is, lawyers.
[** by the way, I’m not sure I have the sense of that passage: is a word missing? “it is”? And is “it” the law, or society, or one of the bad things?]
Well, (1), (2) and (4) are obviously true. On (3) I would assert that – outside the rare cases when law and morality are exactly aligned – bad things can exist or occur without laws permitting or prohibiting or defining them. I’d further assert on (5) that the participation of one or more individual lawyers in allowing or excusing any of those bad things does not mean that lawyers as a class are facilitating them, any more than such acts are facilitated by the daily work of teachers or grocers or farmers, or people from 101 other trades and professions who make life in our modern society possible.
It seems to me that you are also saying that the assertion of these as facts carries no normative value judgment. To which I’d suggest that an assertion that “lawyers” (not just a few lawyers, or some lawyers, but all lawyers) are “facilitating” bad things in society can be interpreted as a value judgement even if it is not intended to be one.
But perhaps I misunderstand.
On (5), the ‘it’ should be a ‘they are’ – and I have amended the post accordingly.
My position is that regardless of whether the lawyers involved can be condemned or not – and sometimes the world-view of the time meant that it may not be fair to think badly of them – lawyers were as intrinsic in the practices described as any slaver, torturer, imperialist and so on. Such activities relied on an infrastructure. My view is that lawyers should be (more) critical of their role in having facilitated things which we (now) see as being wrong.
Internment without trial in N Ireland was lawful under the Special Powers Act of 1922. This gave the Minister of Home Affairs sweeping power — we might call it “Draconian” today.
A reminder, as if one were needed, that this was in part of the United Kingdom, yet barely subject to any scrutiny or oversight.
More here: https://en.wikipedia.org/wiki/Civil_Authorities_(Special_Powers)_Act_(Northern_Ireland)_1922
Suppose I ask a lawyer how I might seek to misappropriate some property or wriggle out of paying compensation for some wrong I did. I might dress the story up a bit for form’s sake. As things stand I would probably get helpful advice and the consultation and advice would remain a secret.
Now suppose I went to a doctor of medicine seeking advice as to how I might do a wrong to a person but avoid physical harm or evidence of my deeds. I might dress the story up a bit for form’s sake. I would hope said doctor would call me a disgusting worm and report me to the police. Even that does not seem certain.
If we were honest the judge would present to the jury ‘Mrs X, for the prosecution and Mr Y, for the defence, trust neither, a courtroom is not a place to discovery the truth, but to win by fair means or foul’. Not an attractive or confidence inducing look.
Then we might consider how law is created. Generally by the powerful and written down by lawyers paid by the powerful to dress said law up in an acceptable manner – to the powerful.
We seem to be asking the lawyer to take on a difficult role – as the absolutely dedicated champion of the client no matter what – and on the other hand as a moral human being. The two things are not always compatible.
‘We seem to be asking the lawyer to take on a difficult role…’
We may be doing so generally, but my post makes no such request
When you say that lawyers facilitated bad things, the normal meaning of that is that the lawyers had some special culpability.
All of those bad things are facilitated by society – if we were just a bunch of hunter-gathererers in groups of only a few families, such bad things would be very limited in scope. The butcher, baker, and candlestick maker are all facilitators. There would be no police brutality without a society to feed and clothe the police so that they could devote their time to policing. Society greatly amplifies the potential in people – whether that is good or bad.
Post Office Horizon deserves a mention in this context.