Edited by Christopher May and Adam Winchester
Chapter 16: Lawyers and the rule of law
The rhetoric of the legal profession claims that lawyers and the rule of law are inseparable. Reality is more complicated. The activities of lawyers both support and undermine the rule of law, the balance depending on which meaning we give to the rule of law. If we mean formal legality, the balance lies with being supportive, but if we mean establishing social and economic rights, opinion survey evidence suggests that the balance lies in the opposite direction. In terms of rule by law and constitutional checks and balances, the balance is less clear. In both these senses, lawyers’ activities seem largely to support the rule of law, but major caveats are necessary, because of, for example, practices such as creative compliance. In two other aspects, contestability and economic certainty, the balance reflects the division of the profession between transactional and litigious practice. Litigious practice is mainly supportive of contestability, but it tends to undermine economic certainty. Transactional practice operates precisely the other way around. That is perhaps not surprising given that the rule of law has both a static and a dynamic aspect, both stabilising and challenging power. Lawyers have important functions in relation to each.
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