24 Aug Symposium on The Sentimental Life of International Law: Exploring the Sentiments of Law
[Ankit Malhotra is reading his LLM at SOAS as the Felix Scholar and is the co-editor of the recently published book “Reimagining the International Legal Order.”]
It is always a pleasure and honour to read the work of Professor Gerry Simpson. His new magnum opus, “The Sentimental Life of International Law” is no exception. That is because his vivid portrait explores the intricacies of international law and international lawyers in a manner that is easily accessible to every reader. What is truly remarkable is to be able to reflect on Professor Simpson’s writings but also look at them parallelly to his place of teaching- London. London is referred to as the home of the Common Law system and also the oldest tailor and robe maker, Ede & Ravenscroft which prides itself to have, “over 300 years’ experience of specialist legal wear tailoring and wig making”. Through the following link one gets a thumbnail snapshot of the history of the robes, judicial headdress, role of Queen’s Counsels and Barristers’ attires. One begins to imagine the canvas on which Prof. Simpson paints. But the journey does not end there. As Lord Bingham perceptively remarked on the value and importance of international law:
“Times have changed. To an extent almost unimaginable even thirty years ago, national courts in this and other countries are called upon to consider and resolve issues turning on the correct understanding and application of international law, not on an occasional basis, now and then, but routinely, and often in cases of great importance.”Lord Bingham, ‘Foreword’ in S Fatima, Using International Law in Domestic Courts (Hart Publishing, Oxford, 2005) (as cited in Anthea Roberts, ‘Comparative International Law? The Role of National Courts in Creating and Enforcing International Law’ (2011) 60 International & Comparative Law Quarterly 57).
This post will illuminate personal reflections on the second chapter of the book. The chapter focuses on the life of international lawyers. The unique process Simpson adopts, one observes, is done by connecting it to the larger purpose of law and lawyers. This purpose is to serve society with an infinite fountain of information and active encouragement. All in the name of progressive and consistent development of law for society.
The Sixteenth President of America and a lawyer by profession, Abraham Lincoln said: “The leading rule for the lawyer, as for the man of every other calling, is diligence”. In the contemporary world, people everywhere have a very narrow perception of lawyers. Far from upholders of justice, today they are seen as callous individuals who care only about personal material enrichment. Conversely, some also believe, so long as lawyers are vested to preserve the interests of their client, he or she is being fair to society. But the philosophical argument that questions the moral underpinnings remains. Plato argued that true moral insight is only possessed by philosophers and only they have sufficient intellectual training to fully understand the law. But Aristotle disagreed by believing that virtue is gained by acting righteously, and moral insight is derived from the perception of the world around. He did not believe in the elitism of philosophy. In other words, Aristotle rejected both positions- Plato’s metaphysics and his elitist notion that philosophers possess a special storehouse of practical wisdom. This philosophical discourse is enshrined in Should Lawyers Listen to Philosophers about Legal Ethics? which explores whether lawyers should, well, listen to philosophers about legal ethics.
The purpose of lawyers stems from the fact that law is a profession and not a business where one merely seeks profits. If one is to believe that law is a business, then one must acknowledge that a business relies on its advertisement’s penetrative force into societal values and beliefs. Therefore, believing the law as a service to society (and not a business), Indian law limits legal advertisement (See BCI Rules, framed under s. 49(1)(c) of the Advocates Act). Perhaps the underlying anxiety about advertising stems from its tendency to portray legal services as a noble profession. The nature of the legal profession is such that lawyers play a very significant role in promoting societal values. David Fagelson, in Rights and Duties: The Ethical Obligation to Serve the Poor argues that because of the privilege they are accorded, lawyers have a moral obligation to offer pro bono legal aid to the deprived. According to Fagelson, the legal profession is awarded privileges because it is supposed to encourage the larger value of justice. Markovits, too, believes that a lawyer is not merely a mouthpiece but he or she must make the inarticulate articulate, and commit to fidelity in translation. However, lawyers can use the ‘articulation excuse’ and cede responsibility for their behaviour as it is not their duty to exercise moral judgment. However, this role ‘re-description’ can only work in an institution where it is encouraged. He argues that the diversity and lack of insularity have made it impossible for the legal profession to support this.
Alexis de Tocqueville in Democracy in America states that lawyers in America have participated actively not only in the legal profession but in many walks of life. He is referring to the impact of lawyers on various aspects of the nation. Fagelson aptly defines the significance of law and lawyers in reforming society. The idea of serving society as an alternative to developing private interests. According to him, this is the cornerstone of the legal profession. He classifies lawyers into two categories, one which is unaware of the actual purpose of law and the other which considers its pro bono service as a way of serving the disadvantaged and defending causes that are least likely to get represented. In addition, even if a lawyer pursues the legal profession to the best of his abilities and ethical norms of the profession, he or she may not succeed in shifting the balance of power in society. Fagelson is successful in communicating that a lawyer must move beyond the realm of law and legal system, to the larger human arena, to fight the injustice rooted in the system. However, a lawyer’s duty lies in realizing the desires of their clients. To the extent that they are lawful. Lawyers are morally justified provided they are doing their duty and executing their given role. Dworkin’s ‘Hard Cases’ arise even in the law governing lawyering, but a divergence of opinions does not open the door to considerations of morality in executing the duty of a lawyer. Lawyers are bound by legal obligations as they have taken an oath to abide by the law, and a failure to do so is a violation of their prima facie obligation. Rawls’ principle of fair play is also an illustration of their obligation: ‘a person is under an obligation to do his part as specified by the rules of a just institution, whenever he has voluntarily accepted the benefits of the scheme or has taken advantage of its opportunities to advance his interests. Further, taking a fee from a client creates an additional obligation to act in their interest. Therefore, moral obligations play second fiddle to professional obligations, because professional duty is assumed to encompass moral considerations. There are only a few grave circumstances where this may not apply.
Professor Simpson’s thoughts can also be understood in the context of Atticus Finch’s character in To Kill a Mockingbird (p 20) which is a testimony to the conviction that lawyers as professionals possess the power to positively impact society. Even though he is unsuccessful in defending his black client Tom Robinson, he successfully makes the readers realize the significance of law and lawyers in ending evil social practices such as racism. He is against the racist and dominant view prevailing in society. He is unaffected by the people who call him a ‘nigger-lover’ and continues to focus on his good work. After being embarrassed by Atticus in the courtroom, the alleged victim’s father, Bob Ewell spits on Atticus’ face. Still, Atticus does not react and reasons that if not for him, Mr Ewell would have taken out his frustration on his helpless children, thus displaying a great sense of empathy. All these characteristics of Atticus suggest that he is an embodiment of an ideal lawyer. He is a lawyer who is not perfect yet practices law in the spirit of the profession, attempting to break the wall of the system which is influenced by biased mindsets.
In The Lost Lawyer (p 370), Anthony Kronman presents the idea of a lawyer-statesman. Atticus is that lawyer-statesman and one of the few lawyers that have turned out to be heroic. Kronman drives home the point that to act as a statesman on a great level, a lawyer must stop practising law as a business. It can be derived from Kronman’s book that Atticus is the ideal lawyer-statesman on account of his great practical wisdom and exceptional persuasive powers and him being devoted to the public good but keenly aware of the limitations of human beings and their political arrangements. Bogus’s analysis of Atticus’s actions is an extension of Kronman’s idea. According to him, ‘Atticus Finch is the quintessential statesman’ and ‘he sees the law as a noble calling and he practices law with nobility’. Kronman sees Atticus as a lawyer who uses his skills learned in the legal profession for the larger good of society. Among others, these skills include clarity in thinking and sound judgment.
Harper Lee’s background, which played a significant role in her book, is well analyzed in The Death of an Honorable Profession. Carl T. Bogus tells us that Harper Lee belonged to an era when lawyers were justifiably regarded as great individuals. As he observes, a group of high-spirited lawyers like Thurgood Marshall and Charles Hamilton Houston started a legal battle in mid-nineteenth-century America for ending discrimination against the black community based on race. Their efforts did not go in vain, as a small syndicate of lawyers in 1954 won in Brown v. Board of Education, a case that made racial segregation in public schools unconstitutional. The nine justices who delivered the judgment, in this case, were morally fit, unlike the members of the jury in Tom Robinson’s case. In one of the instances after Tom is sentenced guilty by the jury, Atticus tells Jem that if he and boys like him were on the jury, Tom would be acquitted. Since Jem is a young kid, he has not yet formed any prejudices or biases in his mind and his opinion that Tom is not guilty is a rational one, based on basic morals and ethics, which he has acquired from his father, Atticus. Atticus epitomizes morality and is always upright in the story. His ethical grounds are so strong that he is never found vacillating between two issues and is clear on his stance.
The current global legal order is a stark portrayal of the reasons behind the downfall of nobility in the legal profession and how evil social practices, such as racism and other structural inequalities are further reinforced if the legal system is not based on morals and ethics. To understand the purpose of the law, we need to take a step back and first understand the purpose of life. Various studies suggest that achieving happiness is the purpose of life. Some people believe happiness can be attained through acquiring money while others think serving a cause bigger than one’s interests brings happiness. Professionals such as lawyers have traditionally chosen the latter path and that is why characters like Atticus are revered. Professor Simpson’s book underscores this idea time and again, making it an important and interesting read.