Trials and error

Bars and law societies are fond of sending letters to governments, usually when lawyers are being mistreated, citing the indispensability of lawyers to the rule of law and democracy. I have no problem with the rule of law part, which is obvious, but the question is the connection between lawyers and democracy. Is it just rhetoric?

We know, particularly since the recent invasions of Iraq and Afghanistan, that there is more to democracy than giving people the vote, even at the point of a gun. Commentators have spoken about the need for the development of a civil society side-by-side with suffrage. Others say that democracy will not take root without a culture and, if possible a historical experience, of seeing disputes resolved through communal mechanisms. But there is a third vital thread in which lawyers play a specific role.

Since Alexis de Tocqueville wrote of his experiences in the US in the 19th century, one of the strengths of democracy has been seen as its ability to recover from mistakes. Autocrats can take forceful actions usually not available to democracies, but autocrats do not learn so easily from mistakes – the inability to criticise the leader is usually built into their system – and this flaw can often prove fatal to them and their societies. If we take the ability to expose and recover from mistakes as one of the key identifiers of democracy, then we can see how lawyers are crucial to democracy itself.

Mistakes are more likely to come to light within an oppositional framework, where each side has both an interest in, and a freedom to point out, the other’s errors. That is how our parliamentary democracy, with its loyal opposition, works. We see in elections (American elections are particularly strong in this field) how both sides are subjected to excruciating examination of their positions, where any flaw is the victim of merciless treatment (the degree of mercilessness depending on the resources of the party’s backers). That is behind the argument for freedom of the press too, where news media have an interest (albeit often a commercial one, or one generated by the political bias of their billionaire owners) to expose the government’s and opposition’s wrongdoings.

And so we come to lawyers. The right of each party to a transaction or dispute, particularly in a dispute with the government, to have a lawyer of choice to put a case freely and without fear is another key element of an oppositional framework which can enable mistakes in a democracy to be exposed. The courts are one of the forums, along with parliament and the press, where mistakes can be corrected. And there have been heroic instances over recent years. The most recent was the action taken by the lawyers for the phone-hacking victims of the News of the World, which set in train the Leveson inquiry and the subsequent moves for new press regulation. A more distant example was the action taken by defence lawyers during the trials following the 1970s IRA bombing campaign.

But we do not need to go to extremes to find this system working successfully. Even in the most basic property or family transaction, or in City deals, the right of each party to an independent lawyer ensures that errors are minimised day by day within a framework built to expose them where possible.

The structures are not perfect. Just as parliament has its own corruption scandals (MPs’ expenses, funding of political parties by undesirable elements), and just as a free press has been shown to be rife with the lowest, and sometimes illegal, practices, so doubtless lawyers’ critics can point to the difficulties inherent in democratic court systems. The cost of taking action is an obvious imperfection, often leading to a gross inequality of arms. This ties in to the never-ending legal aid debate. But the principal matter is that the oppositional structure exists, firmly embedded in our unwritten constitution and in our culture. The malpractices and flaws within those structures will always exist in one form or another, and the hope is that in time they will be exposed and corrected through free criticism.

To return to the letters that bars and law societies send in protest against the treatment of lawyers, it is no accident that they are overwhelmingly sent to countries where democracy is at risk or non-existent. The case of lawyers in Russia (Sergei Magnitsky or Stanislav Markelov, for instance) or China (Chen Guangcheng) are well known. But other countries which feature highly in the list – Iran and Syria, for example – have similar democratic challenges.

We can be proud that there is a strong link between our daily legal work, however mundane, and the existence and requirements of democracy. We tell the truth when we claim as much.

Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs