By Makau Mutua professor at at SUNY Buffalo Law School and Chair of the KHRC.

       

           

 By Makau Mutua professor at at SUNY Buffalo Law School and Chair of the KHRC. 

    

                

What you need to know:

• Many lawyers don’t like to think of the law as an art, a trade, or a craft.
• To them, the law and the profession is a labour of the intellect.

In Henry VI, William Shakespeare wrote that “The first thing we do, let’s kill all the lawyers”. [Part 2, Act IV, Scene 2]. Quite the controversial line for the playwright. Dick the Butcher, an evil man, suggests this as one way to make the country better.

The line has been interpreted as criticism of lawyers who protect the greedy and wealthy, or subvert the rule of law. It could also be backhanded praise for lawyers who oppose mob rule.

Law is regarded as one of the few noble professions. Noble because it creates the rules that undergird civilisation and democratic society. At their noblest, lawyers are guardians of equity, equality and social justice. At their worst, lawyers are vermin.

Let’s grant Shakespeare had a point whatever rendition of lawyers you fancy. As a profession, the law has many subsets – the bar, the bench, the law professoriate, and those who work in the public interest in state agencies, NGOs and as lawmakers.

You like to think lawyers in all these sub-categories work to uphold the rule of law. That, in fact, they stand at the intersection of power and powerlessness – and pull the lever on behalf of the powerless. But this isn’t always the case. That’s because the lawyer is trained to be a legal pagan. To believe – and emote – nothing, except the interests of her client. The paramount obligation of the lawyer is to zealously represent her client.

The lawyer is a performer

This last iteration of the lawyer applies especially to members of the bar, both criminal and civil. That’s why legal training prepares the lawyer to argue – and anticipate – both sides of an issue. You often see lawyers on opposite sides of the same charged case going for a drink together after fierce combat in court. It’s not personal.

Lawyers will represent the Mob, as in Mafiosi and the most despicable murderer and rapist. They will spin their client’s case in the court of law and the court of public opinion. They want to get their client the best possible outcome whether that’s an acquittal, or a finding free of liability. This must be done within rules of ethics.

I don’t want to get into the weeds here, but lawyers may not “rat out” their clients to the authorities, although they are obligated to disclose certain information in particular situations, or be regarded as accomplices, or accessories, to a crime. This rule protects attorney-client privilege, but can’t be used to advance criminality, or conspiracy to commit a crime. 

Whatever the case, the lawyer is a performer. He performs whether he believes his client’s innocence, or not. That’s why the law is a performance art. Many lawyers don’t like to think of the law as an art, a trade, or a craft. To them, the law and the profession is a labour of the intellect. I totally agree. 

Lawyers aren’t simply legal mechanics, or robotic automatons. They aren’t simply assembly line factory workers installing a particular part in the wheel. 

Intellectuals and thinkers

The best lawyers are intellectuals and thinkers. They work with the law, not only as a tool for solving all manner of conflicts, but as weaponry in the struggle for social, economic and political transformation. This isn’t the politicisation of law, or the judicialisation of politics. It’s use of the law – and it’s fashioning – to advance a society of empathy, equity and social justice in which everyone – every single one of us – can have a fair opportunity to realise their full human potential. It doesn’t guarantee outcomes, but it guarantees a fair and just process.

        To achieve this, the legal profession has certain accoutrements. A unique language. A mind that thinks in the language of the law. A writing style that is unique to law. Increasingly, we are teaching law students to speak plainly and not to use language to obfuscate. To make the law accessible, especially to the impoverished and the hoi polloi. To mean it when we say justice must not only be done, but it must be seen to be done. 

To demystify the law. 

    That’s why more jurisdictions are ditching the satanic-looking wigs and cassocks favoured by lawyers as though we are in the Middle Ages. There’s no need for lawyers and judges to scare the bejesus out of litigants.

        This brings me to the performance art we saw during the BBI appeal. It was clear that lawyers are learned. Although some of them put a bit more mustard on their delivery. I understand lawyers want to flummox and bamboozle. But too much mustard may work in the opposite direction.

        We don’t want a clown show in a courtroom. What we need is performance that’s artful and based on the science of law. Because law is a science. It’s juridical science. That’s why we should let the law speak simply and clearly. We must not lose the end purposes of the law, even as we respect the centrality of process.

Makau Mutua is SUNY Distinguished Professor and Margaret W. Wong Professor at Buffalo Law School. He’s chair of KHRC. @makaumutua

Source: Sunday Nation