Systems and Roles

A. Professional Roles

Legal roles reflect economic systems. Considering why industrial capitalism devel­oped in Europe and not in other regions of the world, Max Weber pointed to the roles played by social structure, religion and law.¹⁸ In most capitalist countries, the practice of law is dominated by business.

European legal systems contributed to the development of the modern state by developing rational legal rules. These were deliberately made free of religious and other traditional values or direct political interference and were universally applied. Weber called systems of control by autonomous rules ‘legalism’. Constitutional regimes require judges to protect human and property rights.²⁰ Independent lawyers monitor judges and prevent all but the most arguable cases reaching court. The legal system defines the work and tasks lawyers perform, which becomes integrated into a social role.²¹ In Western societies, lawyers’ roles are defined by the rule of law.

¹⁸ M Weber, Economy and Society (G Roth and W Wittich, eds) (Oakland, CA, University of California Press, 1968) and for critical summaries, see DM Trubek, ‘Max Weber on Law and the Rise of Capitalism’ (1972) 3 Wisconsin Law Review 720 and M Albrow, ‘Legal Positivism and Bourgeois Materialism: Max Weber’s View of the Sociology of Law’ (1975) 2 British Journal of Law and Society 14.

¹⁹ A Giddens, Modernity and Self-Identity: Self and Society in the Late Modern Age (Cambridge, Polity Press, 1991) at 212.

²⁰ GC Hazard and A Dondi, Legal Ethics: A Comparative Study (Stanford, CA, Stanford University Press, 2004) at 92-93.

²¹ F Znaniecki, Social Relations and Social Roles (San Francisco, CA, Chandler Publishing Co, 1965).

B. The Rule of Law

i. Origins and Contemporary Significance

The rule of law means that no person or institution is above the law. This idea has ancient origins beginning, as far as is known, with Aristotle’s assertion that the rule of law is preferable to the rule of man.^[18] In England, this meant controlling the absolute power of the monarchy, starting with Magna Carta in 1215. The rule of law continues to be evoked in legal cases and in legislation. The Constitutional Reform Act 20 0 5,^[19] a significant piece of constitutional legislation, requires that the Lord Chancellor swear an oath to uphold the rule of law and judicial independence.^[20] Because the rule of law is used as a rhetorical device, some legal theorists regard the concept as devalued and meaningless.^[21] Comparative study suggests, however, that it is of fundamental importance both in Europe and the common law jurisdictions based on the system in England and Wales.^[22]

ii. Different Conceptions of the Rule of Law

Tamanaha identifies three formal versions of the rule of law.^[23] These describe the source and form of legality, moving from ‘thin’, or minimalist, versions through to ‘thicker versions’, which add to the requirements of the previous form. The thin version, ‘rule by law’, means that government does not act arbitrarily but acts in accordance with its own laws. The next stage, formal legality, requires that law is also general, prospective, clear and certain. Finally, in the ‘thick’ version, formal legality is linked to democracy, whereby the governed are ruled by laws they have contributed to making. Formal equality before the law guarantees that everyone is treated alike.

While formal versions of the rule of law describe legal processes, none say anything about the content of law. Governments, even democratic ones, could therefore make repressive or discriminatory laws that satisfy formal versions of the rule of law. This had led to suggested substantive additions to formal versions. The ‘thin’ substantive model protects the right to property, contract, privacy and autonomy. The mid-range position asserts the individual’s right to dignity or justice. The ‘thick’ version of the rule of law promises equality, welfare and preservation of community. The last of these, by asserting an overtly political agenda of social reform, is arguably a step too far in describing the reality of the rule of law in Western society. Here, the rule of law reflects the commitment to personal liberty. This version is linked to the triumph of liberalism in the late-seventeenth and eighteenth centuries following centuries of religious and political conflict.

iii. Liberalism and Formal Legality

In Britain, the dominant version of liberalism emphasised the right of every individ­ual to pursue their notion of the good in their own way, provided it did not impinge on the rights of others to do likewise.^[24] This does not mean that law is socially fair or moral. In fact, liberalism supports capitalists and businesses by protecting them from the democratic will of the majority. A legal system that tolerates social injustice is the price of preferring formal legality over ‘thick’ substantive versions of the rule of law. Notwithstanding that the system may be tilted in favour of the wealthy and privileged, formal legality offers advantages to individual citizens and minorities.

The protection afforded capitalism by the rule of law also protects ethnic, religious and sexual freedom. It allows dissenters to predict how government will respond to their actions and to know that the law will offer them a fair hearing.

Although there are different formulations, there is some agreement on the require­ments of the formal version of the rule of law. The eminent political theorist, Joseph Raz, proposed that laws should be produced by open processes. They must be clear, accessible, predictable and prospective, not retroactive. The courts must be acces­sible to ordinary people, the principles of natural justice should be observed and the independence of the judiciary must be guaranteed. The courts should have the power of judicial review and they must be able to control law enforcement and any other agencies that might pervert the law. The rule of law is, however, a contested concept, including in England and Wales.

The notable judge and jurist, Tom Bingham, former Master of the Rolls, Lord Chief Justice and Senior Law Lord, bases his concept of the rule of law on that of AV Dicey.^[26] Bingham goes further than both Dicey and Raz, however, adding requirements for adequate protection for human rights.^[27] He quotes the European Commission, which treats ‘democratization, the rule of law, respect for human rights and good governance as inseparably linked’.^[28] He also regards compliance by the state with obligations arising under international law as part of the rule of law. This is an example of a senior judge pressing for the addition of elements of ‘thicker’ versions to the formal version of the rule of law.

iv. The Control of State Power

In the Western democracies, the rule of law guarantees freedom by limiting the power of the state.^[29] This gives rise to different kinds of liberty.

The final mechanism for restricting the power of the state involves the different functions being allocated to different units. This provides checks and balances on the exercise of power. Horizontally, there is the constitutional separation of powers between executive, legislature and judiciary. Vertically, central and local government have distinct spheres of political influence. This dispersal of power contributes to the institutional preservation of liberty. Courts, therefore, protect political, legal and personal liberty.

C. The Common Law and Adversarial System

Common law systems, which originate in England and Wales, place emphasis on treat­ing like cases alike. The decisions of superior courts in previous cases are binding on inferior courts. The reason for the binding decision is wrapped up in the judgment and a high level of skill is required to identify the material facts and the binding rationale. In common law countries, the dominant mode of dispute resolution is adversarial. In England and Wales, the adversarial trial arose in the medieval era when centralised courts replaced blood feuds, trial by combat and appeals to divine judgement by judicial authority.^[30]

The adversarial trial has a number of distinctive features. The judge in court takes a relatively passive role, acting almost as an umpire, while lawyers take a leading role in questioning witnesses. Having heard all the factual evidence and the representa­tives’ arguments on law, the judge delivers a verdict covering findings of fact and law. In serious criminal cases, juries are directed on the law by the judge and reach a verdict based on their finding of fact. This contrasts sharply with the tradition in continental Europe, where the inquisitorial system gives judges greater control of proceedings.

It is sometimes argued that the adversarial trial remains pre-eminent because it is the best way to test evidence. The presentation of conflicting theories and evidence tests factual accounts effectively. Indeed, cross-examination, where an advocate ques­tions opposing witnesses, has been described as the ‘greatest legal engine ever invented for the discovery of truth’.^[31] It can also be argued that the formality of the adversarial process protects legal values^[32] and that the impersonal nature of adversarial processes offers the best protection of individual dignity and autonomy.

IV.