By: Leo Francis F. Abot
Ateneo Law School
“But what is success, for the college graduate and the professional. Surely it is not simply getting rich; joining the affluent establishment; a bungalow in Makati, a mustang fastback, and Paris in the spring, surely it is service. In a country, like ours, an underdeveloped country . . . –it must be service, service in quite specific and very demanding forms: doctors and nurses for rural areas; teachers for rural schools; engineers for industries that will provide employment; and lawyers who will see to it that, in the words of a great president, ‘Those who have less in life will have more in law,’ and of course social workers; social workers everywhere.”
— Fr. Horacio de la Costa, S.J.
Once in a while, we ought to take our poets seriously. So why don’t we, at least as a thought experiment, follow Shakespeare’s advice and “kill all the lawyers?” Indeed, what would a society without lawyers look like? Perhaps not too few people would like to see a world that is rid of one of the most vilified professions in history. It is a question of utmost personal importance to me. As if entering law school were not a life-threatening endeavor in itself, why would I dare enter a profession whose members are routinely at the receiving end of merciless bullets and even more merciless lawyer jokes?
As it is often said, everyone hates lawyers until they need one. But when does someone need a lawyer? Unlike the doctor or the nurse, the lawyer cannot cure you of infectious diseases or temporarily delay your biological death (although he can probably settle your estate taxes when that fateful day comes). Unlike the engineer, he cannot build structurally-sound buildings or construct other such architectural wonders (at most, he can build a tall stack of pleadings, especially if he bills you by the page). Unlike the teacher, he cannot mold great minds and impart timeless wisdom (though he can sway the mind of a judge in any way he likes by imparting honey-sweet words). And unlike the social worker, he cannot nurture an individual’s well-being and build strong communities (but he can build strong arguments in disputes that can rend communities apart). Lawyers often get a bad rap, and I’m sure they know it.
Yet despite Shakespeare’s counsel, lawyers are here and they are here to stay. Indeed, I’d venture to say that there are three things sure in life: death, taxes, and lawyers. But why is this so? What is that valuable good which lawyers can uniquely offer? The answer, of course, is liberty.
“No person shall be deprived of life, liberty, or property without due process of law,” so commands Art. III, Sec. 1 of our Constitution. We see three items there protected by that provision, yet it is probably toward liberty that our Constitution turns a special gaze. Liberty trumps property because a man would pay much, give up much, to continue roaming free rather than locked up in a jail cell. And while the right to life is the primordial right on which all other rights depend, it is liberty that gives meaning to life in a way that other Constitutional rights do not. Without liberty, man is not man, we become alienated from ourselves and our deepest longings, and our Constitutionally-protected right to life devolves into a meaningless existence. Men would sooner die than forego their right to rule themselves, to speak their mind, and to worship their God.
The lawyer is the agent who secures this liberty. Without lawyers, men will go to jail for crimes they did not commit. They will be detained in faraway, enclosed spaces on charges they will not hear. Before they are blindfolded, they will see their belongings confiscated, and their lands forcibly taken. They will be gagged, and they will scream until they lose their voice, and they will cry because no lawyer can lend his voice to them. And like St. Thomas More, the lawyer par excellence because he was the King’s good servant but God’s first, they will be martyred by unjust men who would not listen to truth.
The legal profession is a noble profession because it protects what men hold most dear, as dear as life itself. If we have good lawyers (and this is a big “if”), we will be free to express ourselves and to say what we believe is true. We will be free from illegal arrests, arbitrary detention, unlawful takings, torture, and cruel and degrading treatment. And we will be free from the whimsical, capricious, and despotic actions of the awesome power that is the State. So let us not kill the lawyers, because if they are good, then they are like the guardians in Plato’s Republic: rulers because they are servants, and protectors of liberty because they are enlightened.
If the lawyer is the protector of liberty, what has he to do with the prosperity of a nation? What can the lawyer do to foster economic growth and promote social justice? As indispensable the good lawyer is, frankly I think his role is only secondary. But he is no less important for it.
The lawyer is a guardian, not a builder. He can protect businesses but he cannot make them grow. The lawyer’s services cost a small fortune, and businessmen hire lawyers not because they can help him earn more but because he expects them to prevent further losses to their company. To be sure, there is much transformation going on in the modern corporate world, and the modern business lawyer is expected to be not only learned in the law but also conversant in managing the enterprise in order to provide sound advice to both starting entrepreneurs and to captains of industry. Yet being a business advisor is not his primary role. He has, at bottom, the unenviable task of cutting through the forest of regulations and minimizing the enterprise’s exposure to litigation. If he cannot accomplish this, if he bungles a case, or if he is responsible for losses in the millions, his hefty bill becomes unjustifiable, and he is booted out by an angry CEO.
Neither is the lawyer an economist, nor a development expert. He can craft the statutes that can enact certain economic policies but he cannot assure that they will be inherently just, or that they will lead to a bright future. A lawyer has case law and precedent to predict a judge’s possible ruling, but he does not have the economic models or the scientific tools to predict our country’s economic situation 20, 50, or 80 years hence. The lawyer perhaps can memorize tax rates and master the remedies provided by the Tax Code, know the ins and outs of foreign investments and investment incentives, and basically be the expert in all our commercial laws. But only the economist can truly know how best to efficiently allocate resources in our economy, and how best to configure our economic system according to the needs and abilities of each sector.
In short, the lawyer does not have all the answers. He must discard his proverbial lawyerly yabang and learn to work with the other professions. Our nation can achieve prosperity if it can value the contributions and perspectives of each one. In our political system traditionally dominated by lawyers, can we not imagine a Congress where our elected officials are economists, teachers, doctors, engineers, or social workers with lawyer assistants instead of the other way around? Is it not time to democratize the composition of those who walk along the corridors of power in order to have a truly representative government?
Nevertheless, not even the best economic policies from the most brilliant economists can work if not translated into sound law. This is where the lawyer steps in. It is the lawyer’s expertise that will allow great economic ideas to be expressed in legal language. His is the tedious task of giving effect to policy through the myriad clauses and provisos that make a statute or regulation. He must make it airtight, foolproof, and capable of withstanding constitutional scrutiny. To be sure, not all lawyers can be legislators. But just the same, it is lawyers and judges who interpret the law that is eventually passed. And because interpretations of law have the potential to be as strong and binding as the law itself, their interpretations have a direct impact on the fruitfulness of our economic policies.
Therefore, the lawyer’s contribution to prosperity is at most indirect. If you engage a lawyer, you are more likely to lose money than earn it (unless you’re an indigent). Nevertheless, it is he who crafts and interprets the laws that are hoped to bear fruit in greater distribution of wealth, in the proliferation of businesses, in the growth of industries, and in the return of investments. He is not prosperity’s champion, but he is its harbinger and guardian.
III. Rule of Law
Lawyers have existed since the dawn of civilization, but the Rule of Law is a relatively new concept. Law has existed ever since the simplest communities of our ancestors evolved into complex societies, but it has not then imposed its Rule. Society’s rulers were kings, pharaohs, despots, tyrants, and emperors. It was they who made the law, and it was by law they thereby ruled. But the law as ruler in its own right is an innovation.
This innovation started in the modern era when it was decided that we would no longer be ruled by the arbitrary whims of men but by the stern and impartial mandate of the law. Great charters, magnae cartae, were drafted in order to put limits to those in power. It would be in these charters that our rights will be enshrined, and our duties and obligations spelled out, no more and no less. Thus, a man falsely accused of a crime would no longer fear the fall of the guillotine’s blade if he were brought before the tribunal of a dispassionate judge simply applying the law. Similarly, a debtor may freely seek shelter under the law from usurious creditors, while creditors being defrauded by unscrupulous debtors need not see their assets dissipated if they come to court for relief. Under a government of laws and not men, the twin needs of justice and order are met. And theoretically at least, the drama of human imperfection need not interfere with law’s enlightened rule.
But in reality, a society ruled by law is rather a society ruled by lawyers (surely to the chagrin of many). We like to speak of the law as “living,” that it has a “spirit” that must be given effect. A spirit it may have, but flesh and blood it does not. Without the lawyer to interpret it and put into effect, the law is a disembodied ghost that is invisible to the society it is supposed to rule.
A society ruled by lawyers might seem like a scary proposition. And this is not only because lawyers, like all people, are human and may err. It is a problem inherent in the human condition because law, I believe, is a very inexact science. The law’s potential for achieving the goals of a just and orderly society are delimited by the capacities of human language and the difficulty of expressing and concretizing the most abstract of concepts. I have remarked on the role of the lawyer in securing liberty and helping bring about prosperity. If the policy of the law is to bring about liberty and prosperity, we must ask: liberty and prosperity for whom? A lawyer who zealously represents his client will fight tooth and nail to secure his liberty and keep him out of jail, even if he knows he is guilty. As prized as our civil liberties are, is not the liberty of the hardened criminal merely a concession of the law rather than a cause for celebration? Or a company lawyer will draft employment contracts with such terms as to net the maximum profit for the corporation, while such terms meet the bare minimum required by the law, and are acquiesced in by employees only because they cannot find alternative employment in a labor-saturated and highly competitive economy. Is this the prosperity envisioned by our charter, prosperity for the few and not the many? Are our labor standards and the principle of equality of opportunity enough to afford whatever vision of prosperity we may have?
There are no easy answers to these questions. What then is the place for the Rule of Law, given its limitations? In this age of societal upheaval, where our faith in such basic values as human rights and the Rule of Law are challenged by societal discontent, why bother at all? Nowadays, it is easy to forego the laborious legal processes in order to achieve desired ends. The swift satisfaction obtained from the extra-judicial killings of alleged “criminals” is, for many of our countrymen, more readily preferable to years and years arguing in a court that will eventually acquit the murderer or drug-pusher. But to me it is quite clear why we have arrived at this situation: the Rule of Law is disregarded because it has failed to serve everyone. Judges and prosecutors get bribed, and high-profile criminals go scot-free after paying a hefty sum to a brilliant but unscrupulous defense counsel. In the meantime, our laws still generally serve corporate interests under the disputable presumption that wealth trickles down.
To me, then, it is not enough to promote the Rule of Law, because law can be imperfect and not as value-neutral as we think it to be. What we need is a society of good lawyers who will steer the Rule of Law to its proper end. The Rule of Law finds its fullest meaning in the hearts and minds of dedicated lawyers who understand that not everything legal is moral or just, and who strive to interpret the law in a reasonable way that benefits the many and not just the few. One may very well argue that the burial of the former dictator Ferdinand Marcos was done under the auspices of the law, and that in a constitutional republic like ours, was done with the tacit consent of the people. Yet when has one ever heard of the law blessing a dictator who routinely broke, twisted, and distorted it? It is a true regression back to the days of despots and not the Rule of Law. In that singular event in our history, the Rule of Law was betrayed in its own name.
IV. I, Future Lawyer
I knew since grade school that I wanted to become a lawyer. No one in my family was a lawyer, and yet my young mind was excited at the thought of being a combative advocate. Of course, I now know that a lawyer is called to a higher vocation than just routinely winning cases and closing lucrative deals. As Fr. De la Costa said, the success of the lawyer, as for any other professional, lies in service.
Safeguarding of liberty and the nurturing of prosperity under the rule of law. As a law student, I will not yet be able to secure the liberty of falsely accused persons, nor will I be able to advise legislators and policymakers on how to improve our economy. Yet I can still do my part and engage in the service that all lawyers are called to, particularly in my extra-curricular activities. I am currently Managing Editor of the Ateneo International Law Review, the official publication of the Ateneo Society of International Law. It is a law journal in its infancy stage and aims to be the first and foremost such journal in the country that focuses on international law issues in the Philippine and Southeast Asian context. As of this writing, we are working on our second issue. Through this medium, I hope to help in the dissemination of knowledge in international law among law students, professors, practitioners, judges, and even laymen. It is especially apt that international law is very strongly developed in the areas of political and economic rights that knowledge in international law will help augment the value we place on collective liberty and prosperity. As Managing Editor tasked with the material production of this medium of information, I hope to be instrumental in this discourse.
After law school and passing the bar, I plan to work in a law firm where I can hone my craft, directly apply what I’ve learned, and practice the Rule of Law not as an abstract concept but as a lived experience. But I believe that my genuine advocacy is in education. I have the heart of an educator as I love explaining concepts and sharing things I know. I hope to teach in law schools, pursue graduate legal studies, and possibly become a legal scholar. I think this two-fold intervention addresses some of the problems and limitations I have alluded to earlier. As a law professor, I hope to mold young legal minds who will become the good lawyers at the forefront of upholding the Rule of Law. As a legal scholar, I hope to do legal research which will address the problems inherent in crafting and interpreting law.
Liberty and prosperity will come about not only if we are ruled by law and not by men, but rather by good law made by good lawyers. If this indispensable role of lawyers is understood, then it would be wrong to follow Shakespeare and kill all the lawyers. Perhaps we should follow Plato’s advice, then, and banish all the poets?