Is the Rule of Lawyers corroding the Rule of Law?

Each time I have hopped into a taxi or ride share on this trip, I haven’t been able to help myself; I open with, ‘so what do you think of your Government?’.

After almost two months of travel across the world, it is virtually unanimous that people start by telling me how much they don’t trust politicians and how they believe law enforcement is not much better. Although the legislative and executive branches of government are normally covered, I generally have to prompt about the third in the triad of government power – the judiciary. Usually, it is a comment about how the courts’ hands are tied. Whatever that means. This last bit always interests me, and when I ask a follow-up question about it, I am told that it is all about who can hire the most expensive lawyer.

So is the rule of lawyers corroding the rule of law? There are many definitions of the rule of law, but it essentially comes down to whether there is a transparent set of rules that we all live by, which are applied equally to everyone and to which everyone is held accountable. The?World justice forum in 2022?explicitly focused on UN Sustainable Development Goal 16: Peace, Justice and Strong Institutions (UN SDG 16). UN SDG16 is said to underpin the rule of law because if we do not trust our institutions, how can we expect the law to be applied equally?

It was rocky beforehand, but the?pandemic exacerbated the decline in the rule of law. Pause for a second to think about what that means. Humans, living with other humans, around other humans, and working alongside each other, don’t believe that the humans whose job is to make, enforce and apply those rules of society can be trusted to do it fairly.

That is a huge and sobering fact that we should all want to run to our neighbour and fix. Think it doesn’t affect you? Economies in societies without the rule of law don’t function so well, and without feeling confident there is a place to turn to feel resolved and heard, people turn to violence. Still think it doesn’t concern you?

So, after I have opened with my charming government question, I undoubtedly get asked what I do. For simplicity, I say, ‘I’m a lawyer’ - and this is where the real fun begins. If not an open eye roll, then it is generally along the lines of ‘you’re part of the problem’, ‘so I need you on my side when I kill someone’, or ‘guess I should charge double’ - or a combination of all three. So what does public opinion of lawyers have to do with the decline of the rule of law? I have had a fair few car rides, trains, buses, and airports to ruminate on this.

As?Sam Muller?discussed with me in our conversation when I was visiting?the Hague Institute of Innovation in Law, we need to get back to the basics. When people go to see a doctor, they seek one of two things - cure or prevention. When people approach the justice system, what do they seek? They want resolution and closure, but how can it be treated as a priority if we don’t measure that? I can almost certainly say that for the majority of my career as a practising lawyer, I was never taught nor trained to consider my clients’ resolution or closure.

So, what are we doing if we don’t measure or aim for what people are coming to us to achieve??Jay Lee?from?OneJustice?framed it beautifully, articulating how the party-based advocacy system focuses on and rewards individual lawyer’s abilities to achieve a particular result, not on?how the system is steered to a certain result in any event. This moves us to a position of ego very quickly: access to justice issues aren’t about the system needing to be amended; they are about needing more lawyers, or better lawyers - and that ‘better’ means lawyers who are better at winning for the individual in the system?as it currently stands.

So that is what we incentivise. The rule of lawyers is a self-perpetuating cycle. We pay those lawyers more, they often play a larger role in our civil societies, and they may go on to sit in branches of government. So from where does the impetus to change the system come? Those voices who are not the ‘better’ lawyers?

I have asked the people I have met on this journey how much they think the free market has influenced the issues plaguing the justice system. The economics of it all fascinates me. Some have told me of how there is an eight times multiplier between the income of a privately practising lawyer in their country and lawyers working in public defender, legal aid or other publicly accessible organisations. Eight times. That takes morals of steel to overcome.

Of course, plenty of talented lawyers and brilliant minds are doing precisely that every day. Nothing has been more inspirational than realising how many are dedicating their lives to this worldwide regardless of personal remuneration. And we do not want people leaving the law or not going into the legal system because they think practising in a way that benefits society at large and practising in a way that puts you ahead in the profession are juxtaposing concepts.

So here’s to all the lawyers prioritising the rule of law over the rule of lawyers. The public defenders, the legal aid lawyers, the NGO lawyers, the not-for-profit lawyers, the pro bono lawyers and many others (and if you want to enhance your pro bono practice, contact?JusticeNet SA?or your local pro bono clearing house). I know you could be earning plenty more – but on behalf of the safety of democracy, thank you for what you do to increase people’s trust in equality before the law.

How do we instead incentivise resolution and closure in the justice system? Have a more democratised version of legal access? Broaden the width and depth of paraprofessionals and ‘allied legal’ professions? Teach dispute of conflict counselling in schools? Increase transparency in the branches of government by teaching civics in schools? More legal literacy outside of courtrooms and into communities?

I’ll need a few more car rides to ruminate on that one…