About the importance of the lawyer to the society, justice and law

1. Definition and Historical Overview of the Role of the Lawyer.

Pure semantic the word Lawyer can cover several meanings.In general sense it is someone who is trained in Law at a University. Mostly the graduated in Law is also licensed to practise Law before the Courts as an Advocate and can come eventually in the conditions to be appointed as a Prosecutor or Judge. In English one uses the words Sollicitor, Barrister or Attorney to distinguish the Lawyer in this more narrow sense as a person who practices Law before the Courts as an advocate i.e. someone who advises and represents parties involved in a Law suit.

Appropriate English terms to describe the general meaning of the word Lawyer are Jurist or Legist, i.e. someone well educated or a scholar in Law. These persons can be employed in the staff of companies like banks,insurances or industries, the Administration or the Government.

In all these cases the main task of the Lawyer is to watch and control that things are done according to the established Law. He legitimates and authorises the enterprised actions.

The profession also leads to a mission in public life as statesman. A majority of the US Presidents were Lawyers. In several countries and regimes the public prosecutors are appointed by political parties or directly elected by the public.
The same goes for the Judges, not to mention the Trial by Jury where twelve fellow-citizens are called to judge about guilt or innocence. On the other hand, one can imagine easily that from the frustation in the daily work as a Lawyer can emerge the urge to change Statute Law. And he is a professional, he knows the actual Body of Law.

Therefor he had studied Law at a University. Today's university had its beginning in medieval Europe in the 12th century and Law School was, besides Medicine School, the eldest division at these medieval universities. The first Universities were foundated during the early Renaissance in Italian Cities like Bologna, Modena, Padua and Naples. In other European countries like France (Paris, Montpellier), England (Oxford) and Spain (Salamanca) universities were also erected.

The Education and Training in Law at these universities was based upon the Study in Latin of the Law System of the Roman Empire. Therefor the Corpus Juris Civilis was used as study material.

This Corpus Juris Civilis ("Body of Civil Law") was prepared during the reign of the Byzantine emperor Justinian I (r. 527-65). In the 6th century AD the mass of Roman legal material that had accumulated in 1,000 years of development was generally unavailable to those who needed it, and it frequently contained contradictions. Early in his reign Justinian established three committees, under the general chairmanship of his chief legal advisor, Tribonian, to gather and edit the legal material. Thus were formed the Codex Justinian, which collected all the laws that had emanated from the emperors themselves and contained mainly public, administrative, and criminal law, the Digest, which collated and removed contradictions from the writings of the foremost Roman legal experts and the Institutes, which was a textbook for beginning students. This distillation of legal expertise, which was later taught at the several Universities, heavily influenced the development of European law. 1

During the whole of the Ancien Regime the society was based upon the dialogue between the Nobles, as defenders of the Land and keepers of the Military Force and the Clergy as defenders of the Faith and Keepers of the Spiritual Knowledge. This scheme for the excercise of the Powers of the State is very old and can be perceived in the Mosaic Age of the Jews or in the Celtic period with their Kings and Druids. Some legendary historic examples as such are Aaron and Mozes, King Arthur and Merlin, Henry VIII and Cardinal Wolsey.

The Study and Education of Law at Universities was in the hands of Clergymen and they trained students to be Officials. They were placed at the disposal of Kings and important Vassals to advice them in the performing of their duties of administration and judication. Others resided in Abbeys or Chapters and were there consulted to give opinion to aldermanbenches who had to decide upon disputes in their communities. On a lower level Judges of the Peace were adjoined to the local keepers of the Armed Power; the Sheriffs. As more educated legists were delivered by the grewing universities, the free profession of the lawyer came into being. The justiciables were allowed to take "a person of good education and speech" to address the claim before the Courts in proper words and with the respect dued to the Court. With the time passing by; these advocates did to have studied Law at the University and around the Courts arose the Inns of Law as the mediaval Guild of the Lawyers, which obtained the privilege and monopoly of pleeing before the Courts. It is from mediaval times that originated the strange rituals of Dignity and Respect that still nowadays influences the procedures before the Courts with courtly manners. One of these is the obligation for a new Lawyer to get introduced to the Court by existing Lawyers.

So Lawyers, where they performed their duty as litterated Officials, lived and prospered well in a governmental matrix, close to the ruling Monarch. As such they were defenders of the Natural Order of Society which arose from the Godly Will. The King was King by the Will of God and under the supervision of the Church. Doctrines of insubordination, contestation or revoltation became traced and sued by the institution of the Holy Inquisition.

On the other hand the One True Christian Doctrine also imposed upon duties of Mercy, which included Church Asile, Amnesty, as the Recourse on Grace, the Conviction to perform a Pelgrimage as Punishment and Repentance and so on.

But the Absolute Power of the Monarch in governing the Nation led to Discretionary and Arbitrary Exercise of Law, the Perversion of Justice, infringing Legal Security. Justice and the Enforcement of Law got regarded as a Practical Source of Income by the King and as a Tool to eliminate adversors.

This behaviour got intellectually criticised among scholars and philosophers. The decay of absolute monarchy led to efforts to check and limit royal power.
The abuse of power by tyrannical Kings would led subsequently to Revolutions in England, the British colonies on the American continent and finally in France.

In England the political philosopher John LOCKE gave shape to the new concept of individual natural rights against the state. According to LOCKE, each human individual is entitled to certain unalienable natural rights. In justifying England's Glorious Revolution of 1688, which led to the English Bill of Rights of 1689, Locke had advanced the contract theory of government, arguing that all "just" governments are founded on consent and are designed solely to protect people in their inherent rights to life, liberty, and property. This theory was used to justify civil disobedience whenever government encroached on any of the specified rights. Locke believed that natural rights should be guaranteed against incursions by other persons as well as by the state.

With the US and French Revolutions the principles of the ancien regime were abandonned and substituted by the enlighted ideas of modern democratic nations that All Powers of a National State emerge from its People. This was a most wonderfull time in which also Electricity became a field of Scientific Research which latter on would led to such wonderfull inventions as artificial light, the telephone, radio and television broadcast and finally the computer and the internet. Also the first modern Encyclopedia as a body of modern Knowledge got edited by the French Encyclopedists.

As stated, Lawyers are in se always conformists to the ruling Law. In the Ancien Regime this led the Lawyers to defend and legitimize the concept of the liaison between State and Church. One should notice that in the Pre-christian Cultures, the Skill of Reading and the Art of Writing were seen as a form of Magick since it created a communicable Spiritual being; a reality of its own.

In this perspective it is also interesting to point at the Medieval Status of a Clark; just because he was able to read and write, he got the tonsure and was submitted to the jurisdiction of the Ecclestical Courts. One can still observe this notion in the Jewish Culture with the Kabbala, its Worship of the Law in the Synagoges and its aim to a Theocratic Government.

There should be remarked too that in Jewish lithurgy the Communion with the God consists from the reading out the of the Talmud, whereas in Christianity the Holy Communion consists in the Sharing of Bread and Wine as a Meal.

In the Archaic times there were no forms of propaganda or masscommunication to inform the justiciables of the Will and the Rulings of their King, other then the recital of a hand-written text. Since then the Course of History has brougt us printed text, recorded speech, video and the internet with its multimedia, and reducing the world unto a global village. But this phenomen points us at the utmost principles of Law that the rules of it should be decreed and brought to the attention of the citizens before they are enforcable; the pre-existing Social Contract between Citizen and Government.

But back to the Period of the Enlightment, the Thinkers and Philosophers of the Enlightment, such as Locke and Hume in England and Montesquieu, ROUSSEAU, and VOLTAIRE in France scoped upon this social contract and pointed out the inalienable natural rights each individual is entitled, even against the government. So this time gave to Humankind the First Declarations of Human Rights as embodied in the American DECLARATION OF INDEPENDENCE of 1776, the Bill of Rights to the American Constitution in 1789, and the French Declaration of the Rights of Man and of the Citizen of 1791, which built upon philosophical foundations to codify in law restraints on governmental power, ensuring the fundamental rights of each individual. Furthermore they emphasised upon the equality of men, abolishing the Privileges of the Nobles and the Clergy.

In America, Thomas JEFFERSON expanded upon the English views of civil rights. He emphasized the primacy of human happiness, by which he meant the opportunity of autonomous individuals to develop themselves to the fullest. He also advanced the concept of religious freedom and church-state separation as a key element of civil rights. Jefferson's thinking was embodied in the DECLARATION OF INDEPENDENCE.

THE DECLARATION OF INDEPENDENCE (1776)(Quote) 2

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the Powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. (End of Quote)

The Bill of Rights, as the first ten amendments to the Constitution of the United States are called, was largely the brainchild of James MADISON. The amendments restricted the power of the new national government in the name of freedom of religion, speech, the press, assembly, and petition. In addition, citizens were assured against unreasonable or unwarranted intrusions by government officials into their homes or personal papers. Certain protections in criminal procedure were established, including the rights to a speedy trial, to a federal grand jury, to reasonable bail, and to confront one's accusers, as well as the right not to be placed twice in jeopardy of life or limb.

The French Declaration of the Rights of Man and of the Citizen was adopted by the Constituent Assembly in August 1789. It was intended as a statement of the basic philosophical principles that inspired the FRENCH REVOLUTION. Among the important principles declared by its 17 articles were freedom and equality; popular sovereignty and the general will; representative government; punishment only for legally defined offenses; free communication of thought and opinion; taxation only by popular consent; separation of powers; and the right to private property and just compensation.

DECLARATION OF THE RIGHTS OF MAN AND CITIZEN (1789) (Quote)

The representatives of the French people, organized in National Assembly, considering that ignorance, forgetfulness or contempt of the rights of man, are the sole causes of the public miseries and of the corruption of governments, have resolved to set forth in a solemn declaration the natural, inalienable, and sacred rights of man, in order that this declaration, being ever present to all the members of the social body, may unceasingly remind them of their rights and their duties;

...

1. Men are born and remain free and equal in rights. Social distinctions can be based only upon public utility.

2. The aim of every political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security, and resistance to oppression.

...

4. Liberty consists in the power to do anything that does not injure others; accordingly, the exercise of the natural rights of each man has no limits except those that secure to the other members of society the enjoyment of these same rights. These limits can be determined only by law.

5. The law has the right to forbid only such actions as are injurious to society. Nothing can be forbidden that is not interdicted by the law, and no one can be constrained to do that which it does not order.

6. Law is the expression of the general will. All citizens have the right to take part personally, or by their representatives, in its formation. It must be the same for all, whether it protects or punishes. All citizens being equal in its eyes, are equally eligible to all public dignities, places, and employments, according to their capacities, and without other distinction than that of their virtues and their talents.

(end quote)

It is self-evident that with the new insights of the enlighted revolutions, the perception of Law changed and thus also the way the Lawyers practiced the Law.

They no longer found the final legitimation of Law and Government in a theological construction, but in a theory of Natural Human Rights. Where authoritarian governments traditionally adhered to the idea, that the individual's highest duty is to serve the state, the modern theory helds that government should serve to enhance the value and dignity of each individual. As such the modern role of the Lawyer is to watch and ensure that the fundamental civil rights or human rights each individual is entitled to, are not endangered by other individuals or the government.

The Internationalisation of Human Rights and its Universal Mission.

With the Liberation of Nazi-occupied Europe, the world discovered the cruelties the Nazi-regime had commited and the decay it had imposed upon human rights. One of the first tasks of the United Nations Organisation, which was founded immediate after the second world war on june 26, 1945 in San Francisco, was to make sure that something was done that such horror never again would struck humanity. It led to the internationalisation of the human rights concept and the birth of humanitarian Law as a branch of International Law.

Important is the fact that the whole theory of the Natural Human Rights as it was worked out with the US and French Revolution with its detailed enumeration of a bill of rights, each individual is entitled to, became internationalised. On a global level there was the Universal Declaration of Human Rights, which was adopted by the UN General Assembly on 10 December 1948.

Within UN the first measures were taken to ensure the enforcability of certain human rights with its Convention on the Prevention and Punishment of the Crime of Genocide, signed at New York on 9 December 1948. Meanwhile the former Nazi-Criminals were prosecuted and trialed at the Nurnberg Tribunal.

At the Geneva Conventions of 1949 humanitarian-law principles governing the rules of war to protect civilians, the wounded, the shipwrecked, and prisoners of war were revised and confirmed. These principles were earlier formulated and developed extensively from the writings of Hugo Grotius in the 17th century through the Hague Conferences of 1899 and 1907.

In Europe there was the Convention for Protection of Human Rights and Fundamental Freedoms, or European Convention on Human Rights, signed in Rome on 4 november 1950, which also supplied in the Establishment of the European Court of Human Rights.

This Convention under the auspices of the Council of Europe sets out a number of fundamental rights and freedoms that the State-Parties in the Council of Europe undertake to secure to everyone within their jurisdiction. To supervise its application it establishes international enforcement machinery designed to ensure that Parties respect their engagements under the Convention. The European Commission and Court of Human Rights examine petitions from States or from any person, non-governmental organisation or group of individuals. As regards petitions submitted by other than by a State, the competence of the Convention organs depends on the recognition by Parties of the competence of the European Commission of Human Rights to receive individual petitions and of the jurisdiction of the European Court of Human Rights . Some duties are assigned to the Committee of Ministers of the Council of Europe. The Court's judgments and decisions of the Committee of Ministers are final and binding. 3

In the Sixties Western civilisation knew an economical conjuncture with a social and cultural highpoint. On the other hand this epoque was also marked by the emancipation and the declarations of independence of several nations of former overseas colonies to the European countries. Both circumstances which led to the declaration of the so called second generation of Human Rights as embodied in the UN International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights of 16 December 1966. The primary Civil and Political rights are placed under guardance of a Permanent UN Human Rights Committee, whereas a serie of secondary rights are proclamed such as the rights on fair employment, on medical care, on education and controled by the Economonic and Social Council at the United Nations.

The European as well as the UN Convention on Human Rights provide in an international organ which supervises and controls the individual State-Parties that they guarantee the human rights. The European Convention even provides a mechanism to enforce the respectation of the human rights by the State-parties.

This high flight, human rights takes of from the sixties, makes the french auteur Patrick Wachsmann to speak of the internationalisation and the universal mission of the human rights concept.4 This tendency also was noticed by Pope Paulus VI who made his famous statement before the International Labour Organisation,

the 10th of June 1969.5

En notre monde secularisé, ce n' est plus Dieu qui est premier, comme il a pu l'etre aux temps bibliques, apostoliques et de chrétienté, mais c'est l'homme.

In the nineties we see the grewing importance of the enforcability of the principles of international humanitarian Law before International Criminal War Courts such as Ruanda or Yugoslavia. Here lawyers are working in the field to collect evidence of crimes against humanity and of genocide and are helping to bring Justice to All for the Civil Suits which occur from such crimes in these teared regions.

[IN PREPARATION]

Part 2. Overview of Primary Civil Rights

Part 3. Elements of the European Ethics of the Lawyer

Notes
1. Information on Corpus Juris Civilis taken from Grolier Multimedia Encyclopedia edition 1996
2. Information on Enlightment destilled and quotes taken from Grolier Multimedia Encyclopedia edition 1996
3. Information on European Human Rights Convention found on the website of the European Court for Human Rights
4. WACHSMAN, P., Les Droits de l'Homme, Paris, Dalloz, 1992
5. de BOISDEFFRE, P., La foi des anciens jours en celle des temps nouveaux, Paris, Artheme Fayard, 1977


November 1999
© SABAM Belgium 1999