Autonomy and control
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The bench’s independence
At least since classical Greece, a recurring political theme has been the need for a government of laws rather than of men. Actually, however, as the 20th-century English legal philosopher Julius Stone observed, society of necessity has a government both of laws and of men, and the demand for legal autonomy is often seen in practice as a demand for freedom of the lawyers from undue political influence. The demand for autonomy has been expressed mainly in terms of the independence of the judiciary; democracies in particular have been assiduous in cultivating both a spirit and traditions that respect judicial independence. The details of their governmental structure or constitutional guarantees tend in that direction, offering obstacles to the ready dismissal of judges, charging their salaries on consolidated revenue, and prohibiting the vesting of judicial functions other than in duly constituted courts of law.
The special position of the judiciary in constitutional states is usually considered to be an aspect of the separation of powers, but it also should be considered in its relation to the structure of the legal profession. Since the late Roman Empire, admission to the practice of law and the regulation of the practicing profession have been habitually vested in the judiciary. Furthermore, the duty to speak fearlessly for his client has often required courage of the advocate in the face of political threats, and, when these threats were directed also against the court before which the advocate appeared, judicial courage also was required. The legal profession as a whole is then seen as defending “the rule of law” against the political regime.
The issue of judicial independence may sometimes, however, be seen in the context of the tension between judges and advocates. In the civil-law systems judges often are subject to a strong corporate discipline within their own craft, and differences can occur between them and the body of advocates and also between them and the university teacher-commentators. These differences may relate to questions of legal ethics, especially the limits of advocate identification with client, or to questions of legal doctrine; the judges are then apt to be considered as representing “the state,” and the advocates and teachers the autonomy of the law. In the English-derived systems judges are much less subject to corporate discipline, and disputes with the bar are more likely to arise with individual judges and to be highly personal. Even in stable countries, where the rule of law and the independence of judiciary and profession are respected, there is a less-dramatic tension between the standards and tone of the lawyers on the one hand and the political administration on the other. For the lawyers, policy is largely concealed in the propositions that constitute the normative system, and legal reasoning usually involves definitions and processes of inference from the body of such propositions themselves rather than directly from the policies that the norms subserve. There have often been revolts against such “logic” within the legal profession itself, especially in the 20th century, but it still remains the most common method of thinking among lawyers, and it is doubtful whether one can speak of a “rule of law” at all unless a good deal of legal reasoning is conceptual in style. Politicians and administrators, on the other hand, are more likely to reason directly from policies and purposes and from the considerations relevant to their attainment. This divergence of approach is often illustrated by referring to the tension between the police officer, confident that he has the guilty man and intent only on putting him in jail, and the lawyers and judge, who insist on the need for “conviction according to law,” which may involve applying rules of evidence that seem artificial and even absurd to the police officer. In rigid constitutional systems, where there is judicial review of legislation, politicians may be affronted at the way in which political issues are transformed by the lawyers into legal issues. In many modern countries there has been a tendency to remove certain kinds of disputes both from the courts and from the lawyers and to vest their determination in administrative bodies before which lawyers are denied standing, so as to escape what has been regarded as the blight of legal reasoning; as often there have been reactions in favour of restoring the “rule of law” and the lawyers. In such disputes it is often difficult to distinguish between lawyerly attitudes that reflect the necessary features of a rule of law from those that merely reflect the temporary self-interest of particular lawyers or their clients.
The bar’s independence
Independence is also an issue for lawyers themselves, often in ways that may involve economic considerations as much as, if not more than, political considerations. In the United States and, to a lesser degree, other liberal-democratic states with well-developed legal professions, important scholars have argued that the bar has steadily been losing the very qualities—including most notably independence from its clientele—that distinguish the practice of law from the conduct of any business. A great deal of this, they suggest, has to do with the nature of the marketplace for legal services.
Not only has the number of attorneys grown markedly (with the United States now having more than one million), but this growth has been most pronounced in large law firms whose members have become accustomed to annual incomes far in excess of their predecessors in the mid- to late 20th century (even taking account of inflation). At the same time, there is an increasing competition for clientele, who especially in the business world have been conducting more of their legal work themselves while eschewing long-term relationships with outside law firms in favour of more ad hoc arrangements. Moreover, of late, what are known as multidisciplinary practices (such as accounting firms offering legal services) and other nontraditional providers of legal and business advice (such as consulting firms) have intensified the competition for clientele.
The foregoing economic changes, academic critics contend, have eroded the bar’s independence, in the sense of making it harder (or at least more costly) for lawyers to maintain an appropriate distance from their clients. Such distance, it is argued, is important because it enables lawyers to give clients their best judgment—even if it involves criticism of the client’s plans—and to discharge their responsibility to the broader public interest. These changes are also affecting the bar’s independence in a broader societal sense, according to some observers, by diminishing the willingness of lawyers to take on unpopular clientele, devote time to pro bono work, or engage in civic activity more generally. Other commentators, to be sure, do not bemoan these transformations but see them as evidence of an overdue evolution toward a greater rationalization of the delivery of legal services.