01 Oct A Reductionist View on the Role of Lawyers
[Dr. Srinivas Burra is an Assistant Professor at the Faculty of Legal Studies, South Asian University, New Delhi.]
This is in response to Benoit Mayer’s writeup titled ‘Why I Can’t Sign the World Lawyers’ Pledge on Climate Action‘, which was a reaction to ‘World Lawyers’ Pledge on Climate Action: An Urgent Call for Climate Mainstreaming‘.
I am not an expert on climate change and climate law. If the debate is between the experts of climate law, expertise of similar standing in the relevant field would make the debate academically engaging and enriching. However, Mayer’s writeup is not on the merits of the pledge on climate action alone; instead, he presents his views as to why as a lawyer he couldn’t sign the pledge. Thus, his ideas are expressed not as an individual scholarly engagement but as part of a community of lawyers. I consider myself part of this professional community, hence this response.
Mayer’s arguments in his writeup mainly revolve around three aspects. Lawyers do not have unique insights into climate change the way scientists, economics and moral philosophers have and, therefore, they cannot sign the pledge as lawyers; lawyers’ task is to tell what the law is and not what the law should be; and scholars, in general, should be objective and not driven by political considerations. Mayer’s arguments move back and forth between these issues.
Lawyers Lack Unique Insights on Climate Change
While Mayer is right when he argues that, unlike scientists, lawyers do not have unique insights on climate change, he is not convincing when he argues that lawyers cannot make unique contributions in law on climate change. Mayer believes that ‘most lawyers don’t have advanced training in science, economics, or moral philosophy, which would allow us to have unique insights about what should be done about climate change.’ If not just scientists but economists and moral philosophers can have unique insights, it is inexplicable why lawyers cannot have unique insights about climate change. It is unclear why scientists would be able to tell what should be done. Going by the reasoning Mayer applies to lawyers, scientists’ task is also to do scientific research and inform what is happening with climate change. That no way empowers them to tell us what should be done. What should be done will be decided by governments and corporations.
Interestingly, Mayer says that his research finds that states have no firm legal obligation to act consistently with the 1.5/2°C temperature targets and human rights treaties open only “narrow windows” on the applicability of general mitigation obligations. What makes Mayer and other lawyers to do this research? It is certainly the scientists’ findings that are the basis for lawyers to conduct research on how to address them in law. When a scientist with their expertise finds what is happening with climate change, the findings of that research are the basis for lawyers like Mayer to find out whether there are adequate legal obligations to mitigate the crisis. If a scientist can tell us what should be done, a lawyer can also engage in research on the law based on what scientists say and argue about how states’ and others’ obligations can be made better in law.
It is true both that a scientist can have unique insights in terms of causes and effects concerning what is happening with climate change and that a lawyer cannot have the same insights. However, lawyers like Mayer do conduct research in the backdrop of insights from scientists. They do draw conclusions in the field of law the way Mayer did. When scientists tell us what can be done to deal with climate change, lawyers can tell us what should be done in the field of law to achieve what scientists think should be done. While the substance of both these research engagements is not the same, the findings are fundamentally no different in terms of their uniqueness on climate change.
Lawyers’ Task is to Say What the Law Is
The view that lawyers should focus on what the law is and not what the law should be seems to emanate from the position that law is a domain in its own right and has the capability to engage with any issue posed in the form of a legal dispute. In a theoretical sense, this view broadly falls within the framework of positivism. This view emphasises the autonomy of the field of law and its nature as distinct from economic, political, social and other spheres. That is where Mayer seems to find himself in an irreconcilable position between understanding the law as objectively as possible and promoting legal change. Positivism has insurmountable limitations and critical international law scholars engage with and highlight these limitations almost daily. Mayer presents a narrow conception of law and lawyers.
Most importantly, Mayer seems to extend the autonomous conception of law to lawyers in general. Though it is not explicitly stated, he does not seem to distinguish between the law and the lawyers. However, we cannot group the law and the lawyers together. We cannot deny that there are different strands of critical lawyers who do not believe in the positivist conception of law. This can include Marxist lawyers, critical legal studies lawyers, feminist lawyers and third world approaches to international law lawyers. Many of them reject the idea of the autonomy of law and question what the law is today. At the same time, many of them engage with the existing law on a daily basis. In such situations, can we argue that as long as they deal with the existing law, they remain as lawyers, but when they argue about what the law should be they lose their lawyer status? The answer is they are still lawyers. Similarly, a positivist lawyer who believes in the autonomy of law and deals with it daily can propose what the law should be and still remain a lawyer. This does not alter the foundations of law nor compromise the lawyer’s professional status. This needs to be understood along the lines of structure and agency.
Judges and lawyers appearing before the courts indeed perform their functions by adhering to what the law is. However, that is a professional function performed by them and we can witness similar professionalism in other professions as well. In that respect they are relatively constrained and may not be equated with scholars.
Scholars Should Be Objective and Without Political Considerations
Mayer also speaks about the role of scholars in general, as he does not explicitly refer only to scholars of law. Mayer considers that societies entrust scholars with the task of ascertaining information. If that is the case, what information do legal scholars ascertain? Is it to gather information on what laws governments make and what judgments are delivered by courts and tribunals? If that is the case, then it does not require any specialist knowledge other than knowing the language in which laws are made and judgments are delivered. Mayer quickly changes the role of a scholar from one who ascertains information to the curator of human knowledge. In the same sentence, scholars as curators of human knowledge are given the role of helping society determine what is true (truth?). Curators are custodians of what is true is a different intellectual exercise. Being engaged in determining what is true and what is not itself involves making certain choices. This is because society is not a monolithic entity. Society consists of various social groups with contending priorities and preferences. What a scholar considers as true may not always be acceptable to all social groups. Based on necessary evidence, proposing a particular form or description of what is true, when there is opposition from certain groups, inevitably involves exercising preferences. Exercising a preference is influenced by political, economic, cultural and other priorities.
For determining what is true, Mayer gives the example of determining what the law is. In the everyday life of law, the scholar has almost no role in determining what the law is. The executive functionaries of the state do this. Lawyers who argue before the courts and tribunals and the judges are the ones involved in this exercise. The role that Mayer envisages for scholars in this task is neither entrusted to them formally by the society. If Mayer believes that society looks forward to the scholarly intervention in the determination of what the law is, then that necessarily involves some form of political preference. That is because society as a whole rarely will have a uniform aspirations and expectations for knowing what the law is.
In the end, Mayer makes two observations to support his position. These observations actually underline the limits of his own arguments. Firstly, Mayer observes that in certain clear-cut circumstances such as law that justifies mass atrocity, we can take a clear position of rejecting the law because these atrocities are attributable to the legal system. But even if these mass atrocities are attributable to the established law, going by Mayer’s earlier arguments, we as lawyers should not reject that law because that is not our job. Contrary to his own argument, Mayer argues that in such cases we can reject the law. As that law is valid, rejection can happen only by relying on moral and other grounds –not on law, which is something beyond what Mayer thinks as the task of lawyers. This contradicts Mayer’s position on the role of lawyers as merely stating what the law is. As the guardians of the law, Mayer says, ‘we have no more right to decide what societies do with their laws than banks have in determining what their customers do with their money.’ If that is the case, we as lawyers cannot reject the law that justifies mass atrocity, even if it is plainly evil, because such law often results from legal processes. Mayer seems to wrongly relate this issue with what he says it is difficult to distinguish right from wrong in the case of climate change. Does that mean if we are able to distinguish the right from wrong in the case of climate change, we can reject the law? In the case of climate change, there may be uncertainties on some issues like its relation with economic development and social justice. If that is the reason for not signing the pledge, then it is a convincing position. But that is different from arguing that lawyers do not have unique insights or lawyers cannot speak on what the law should be. These two positions are fundamentally different.
Secondly, Mayer rightly accepts that lawyers’ analysis is shaped by ideology. If that is the case, then we are never outside of ideology. We are already biased. So it is not the question of fewer biases or more biases. At the most, it is only a question of which ideology. The view that lawyers cannot speak on what the law should be is itself a product of a particular ideology. It is not an objective view and it does not lead to an objective assessment of a situation.
At the core of Mayer’s arguments is a reductionist view that attempts to keep the field of law outside the interconnected epistemic whole of, to use his own words, human knowledge.