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By: Nigel Carmelo Q. Reago

De La Salle University

 

Safeguarding Liberty and Nurturing Prosperity under the Rule of Law

          The legal profession has been sometimes referred to as the oldest profession and it has taken various forms throughout time – from the representatives of the kin group in ancient Greece, the legal advisors and advocates of 5th and 6th century Rome, the barristers of England during the Middle Ages and Post-Medieval period, and the lawyers as we know today.1

          The practice of law, as a progressive science, continuously develops and becomes more and more intricate by the moment as new laws are being passed.

          For instance, towards the later part of the 20th century and until the present, we have witnessed the upsurge of treaties, international conventions, and local legislations governing the environment and intellectual property rights.

          The Stockholm Declaration of 1972 was the first articulation of the right to environment in international law.2 This was soon followed by various international agreements like the United Nations Framework Convention on Climate Change and its Protocols. These developments in international law were the catalysts for the enactment of environmental laws in the Philippines like the Climate Change Act of 2007.

          Among the important treaties concerning intellectual property rights are the Patent Cooperation Treaty of 1970 and the Madrid Protocol of 1989 which governed patents and trademarks respectively. In 1997, the Philippines enacted its own Intellectual Property Code.

          The widespread use of the internet has also resulted into the enactment of laws designed to regulate the use of cyberspace. The Cybercrime Protection Act of 2012 was passed to punish all forms of misuse, abuse, and illegal access of information or data stored in computers, communication systems, networks, and databases.3

          Currently, the emergence of Transport Network Vehicle Services (TNVS) like Grab and Uber in the country could possibly impact how the government will regulate common carriers and other public utilities. It is highly likely that a law would be passed addressing TNVS in particular.

          All these have to do with the fact that law is reactionary by nature. Laws are there to address new social realities and recent developments in information and technology.

          While the scope of the practice of law continuously widens and becomes more complicated, it is important for the modern day lawyer not to get lost amidst all these intricacies.

          The philosophy of the Foundation for Liberty and Prosperity (FLP) which is expressed in the phrase “safeguarding liberty and nurturing prosperity under the rule of law” reminds the lawyer of his or her fundamental duties to the society in general. It does not inform the lawyer anything new for these fundamental duties are the very same duties of legal practitioners from centuries ago.

          The Foundation for Liberty and Prosperity’s philosophy speaks of a “rule of law”. What does rule of law mean? To understand this, there is a need to look back into the origins of the State or government. Arguably, the most famous philosophical work on the origins of the State is the Social Contract Theory of Jean Jacques Rousseau.

          “Man is born free; and everywhere he is in chains.”4

          This is how Rousseau posed the problem he sought to address in the Social Contract Theory. Rousseau posits that at the time when no society has been established yet, man was absolutely free to do as he wishes. Yet later on States were established which enacted rules and laws by which man is bound. What then accounts for the legitimacy of State authority over individuals?

          For Rousseau, men entered into social conventions or contracts to build societies in their desire to achieve social order. By surrendering or alienating certain rights and freedoms in favor of the State, they will receive protection and care from it.

          But even in this setup, certain problems still abound. Every man has his own expectations of society and it is inevitable that one’s expectations and interests will clash with those of another. To address this, the State enact laws to meet these conflicting expectations with less friction. In this sense, laws are used as means of social control.

          Rule of law means that laws should at all times be upheld as they are the very bonds that keeps society from falling apart. Absent laws, we would return in a state wherein each man would act only according to his own interests without regard to the interests of the others. Rousseau eloquently described the nature of man without society:

          “His first law is to provide for his own preservation, his first cares are those which he owes to himself; and, as soon as he reaches years of discretion, he is the sole judge of the proper means of preserving himself, and consequently becomes his own master.”5

          How then does the lawyer fit in the societal setup? In the words of former Court of Appeals Associate Justice Jorge Coquia, “Lawyers belong to a privileged class of professionals which constitutes the natural bond between people and their government.”6

          This is where the fundamental duties of a lawyer become relevant. As the natural link between the people and the State, the lawyer has the duty to safeguard the people’s liberty and to nurture prosperity under the rule of law.

          While the people alienate a part of their freedom to the State, the lawyer has to ensure that the State never impinges on what is left of their freedom. In this regard, the lawyer would have to invoke the bill of rights which circumscribe the powers of the State as granted and defined in the Constitution.

          One of the functions of a lawyer is advocacy. While a lawyer is said to be first and foremost an officer of the court who has the duty to help the judge decide on a case, he should not undermine his duty as an advocate speaking on behalf of his client. This becomes even more an imperative in cases against the State and its officers for violations of fundamental rights enshrined in the Constitution like right to life and liberty.

          The other duty of a lawyer is the nurturing of prosperity in the society. Belonging to a privileged class of professionals which serves as the natural link between the people and the State, the lawyers are seen as leaders of society. Intimately connected with this duty is the function of a lawyer as an agent of social change. The lawyer should perform a main role in forming and shaping public opinion which is a public responsibility shared with other learned professionals like doctors and teachers. John W. Wade speaks of the duties of learned professionals:

          “The first of these duties is to be thoroughly aware of particular issues at various governmental levels – to seek to learn the facts and factors involved in them in a careful, skeptical fashion. The second is to make wise decisions regarding these issues.”7

          The lawyer must endeavor to make himself or herself aware of the issues plaguing the country at present. He or she must likewise be able to properly evaluate the various circumstances that must be considered in coming up with an objective opinion on the said public issues. The next step would be to influence other people with that opinion and galvanize them into action. This is how he or she could make changes in the society. But the underlying purpose for all of this is that he or she is to make sure that not just a few people benefit from the society that everyone agreed to build. His or her main consideration is always the benefit for the greater number of people so as to make sure that there is progress and development in the community. Otherwise, the very purpose by which the society is built is set to naught.

          These fundamental duties of a lawyer to the society could be attributed to the fact that it is a profession and not a mere money-making trade. A profession according to Roscoe Pound is a “group of men pursuing a learned art…in the spirit of public service.”8 Hence there is always a public responsibility involved in the legal profession. And the modern day lawyer must be reminded of these public responsibilities and duties especially in these times where extra-judicial killings associated with the government’s anti-drug campaign are very rampant. The lawyer must uphold the rule of law. He or she must demand from the government that due process must be accorded to the citizens with alleged involvement in illicit drug activities. He or she must also seek accountability from the government and its agents for trampling upon the rights and fundamental liberties of people encapsulated in the Constitution.

          To reiterate, what the philosophy of the Foundation for Liberty and Prosperity achieves is to remind the lawyers and even law students of the fundamental duties which is associated with the practice of law. It goes back into the very essentials of the legal profession.

 

How can I promote this philosophy as a student?

          The study of law is not something that should be learned atop a pedestal for laws pervade even the minutest acts of social life and interaction. It is essential that early on in their legal careers law students are already abreast of what the fundamental duties to the society come with the exercise of the legal profession.

          As a senior law student, I shall strive to incorporate the philosophy of “safeguarding liberty and nurturing prosperity under the rule of law” with my study of law as a reminder that I pursue a profession charged with certain duties to the society in general where pecuniary gain is merely incidental. And these principles I shall apply to even the slightest exposure that I get in the practice of law from this point forward.

          Currently, I am part of the Development Legal Advocacy Clinic of the De La Salle University College of Law and I have experienced, so far, working in the Task Force Detainees of the Philippines which is one of the human rights defenders in the country.

          Moreover, I shall endeavor to be well-informed of the various social, political, and legal issues in the country and form or contribute in making an objective opinion addressing those issues giving special premium, whenever relevant, on the protection of the people’s liberties against abuse by the State and its agents. I shall engage other law students in discussions about these issues so as also to impart to them the idea that the practice of law carries certain public responsibilities.

 

How will I apply this in my legal career?

          As stated in the earlier parts of this work, the Foundation for Liberty and Prosperity’s philosophy of “safeguarding liberty and nurturing prosperity under the rule of law” is a reminder to lawyers of their fundamental duties to the society.

          This philosophy will serve as a constant reminder that no matter how far I have gone in my legal career or no matter how occupied I am with my pending works, when the time comes that there are certain social, political, and legal issues in the country which threatens the social order, I am oath-bound to take the necessary actions even if these issues do not affect me personally. It will likewise serve as a reminder that I am also both an advocate for others and an agent of social change.

          More importantly, this will serve as some form of “professional compass” to help me be realigned with what really is essential to the legal profession every time I get so engrossed with the present demands in the practice of law.

 

1See Carol Rice Andrews, Standards of Conduct for Lawyers: An 800-Year Evolution, 57 SMU L. R 1385 (2005) and Carol Rice Andrews, The Lawyer’s Oath: Both Ancient and Modern, 22 GEO. J. LEGAL ETHICS 3 (2009).

2Svitlana Kravchenko, Environmental Rights in International Law: Explicitly Recognized or Creatively Interpreted, 7 F A&M U. L. REV. (2015).

3Act No. 10175 (2012), sec. 2.

4Jean-Jacques Rousseau, and G. D. H. Cole. The Social Contract; and, The Discourses 3 (New York: A.A. Knopf, 1993).

5Ibid.

6JORGE R. COQUIA, LEGAL PROFESSION: AN INTRODUCTION FOR LAW STUDENTS AND YOUNG LAWYERSOF THE 20TH CENTURY 120 (2nd, 2001).

7John W. Wade, Public Responsibilities of the Learned Professions, 21 L L. REV. 137 (1960).

8Roscoe Pound, What is a Profession the Rise of the Legal Profession in Antiquity, 19 NOTRE DAME L. R 203, 204 (1994).