February 1, 2021
Why Lawyers Matter: History and Lessons
by Gus Bequai, Editor
“...no government can stand which is not founded on justice.” – Aristotle
Evolution of the Legal Profession
The world’s legal systems fall under one of four major categories or a combination of these: civil law, common law, customary law, and religious law (primarily Cannon and Sharia). Of these, civil law is the most widespread globally and is heavily influenced by the Napoleonic Code of 1804. The latter constituted the first major comprehensive codification of Western law since Justinian’s Code in the 6th century A.D. No legal document has had the same influence or impact worldwide as the Napoleonic Code. Components of it can be found in every legal system in the world; including the United States (Louisiana and Puerto Rico, partially).
The common law is the second most widely used legal system in the world. By the 12th century, what has come to be called the English common law had evolved from custom, local usage, judge-made laws, and acts of Parliament. While Wales adopted the English common law, Scotland and Ireland developed their own independent legal systems; heavily influenced by those of Continental Europe. With the rise and expansion of the British Empire, the common law system of governance followed; as did the rules that governed her legal advocates.
However, under the English legal system, unlike that in the United States, Parliament (the legislature) reigns supreme; the judiciary is its subordinate. Well until the rise of the Tudor dynasty, the legal profession in England, like that on the Continent, was largely the monopoly of the clergy. This changed with the Protestant Reformation and the legal and religious reforms of Henry VIII and Elizabeth I. Secular lawyers came to the fore. Their role and power increased with the rise of England’s mercantile class. The English East India Company needed secular lawyers, not clerics, to ferment its power over a growing empire that dwarfed England.
Customary law has been defined as the organic or living law of indigenous people; regulating their daily lives and dealings. The oldest of all legal systems, it is found in numerous localities worldwide. It is regulatory in that it regulates the lives and interactions of members of the local communities that are subject to it. Under customary law, elders and other well-respected members of the local community are called upon to hear and arbitrate a variety of disputes. These can range from the simple to the serious.
In some communities, customary law is used to resolve such life and death matters as vendettas between clans or offenses which bring shame and dishonor to a tribe, clan, or family. A number of nations in Africa, Asia, and Latin America have incorporated customary law into their legal systems. Section 211 of the South African Constitution recognizes the customary law and traditional authority practiced by many local communities in that nation.
Religious law (primarily Cannon and Sharia) is also widely used worldwide. After the fall of the Western Roman Empire in the 5th century A.D., the Catholic Church came to fill the political and legal void it left behind. Borrowing from Rome’s legal system, the Catholic Church developed its own hybrid (Cannon law) legal system. Much of it was codified; with an army of clerical lawyers and judges trained to administer it. Throughout Europe’s Middle Ages, the law was the domain of the Catholic Church. Its monopoly on learning and reading ensured the dominance of Canon Law well into the Protestant Reformation.
In parts of Africa and Asia, the rise of Islam in the 7th century A.D., brought with it the proliferation of Islamic (Sharia) law. Until then, much of the legal system in place in North Africa, the Middle East and Asia Minor consisted of Roman (Byzantine Empire) and Persian (Sassanid Empire) law. Until the rise of Islam, lawyers in those regions were trained in the legal systems of those two empires.
The first Four Caliphs in Islam and those that followed them-(primarily the Umayyad and Abbasid Caliphates)-established an Islamic judicial system, legal codes, law schools, and cadres of trained lawyers to implement Islamic (Sharia) law. While the Muslim rulers borrowed when needed from the Roman and Persian legal systems, at the heart of Sharia law lays the Koran, and its interpretation over the centuries by Muslim scholars, preachers, and schools. Sharia law is practiced today in one form or another in many parts of the world.
Lawyers Come to the Fore
In Ancient Athens (3,000 to 404 B.C.) and Republican Rome (501 to 47 B.C.), legal advocates were frequently individuals who were self-taught in the customs, practices, and legal systems of their societies. Many of them were public speakers; practicing law as a part-time avocation. While they could not legally charge money for their legal services, a barter system evolved to get around these restrictions. In both Ancient Athens and Republican Rome, unlike in Ancient Egypt (3,000 to 653 B.C.), every citizen was expected to argue his/her own case before the local courts.
The legal profession that we have come to know today had its beginning in 41 A.D. with the ascent of Claudius as Emperor of Rome. Claudius embarked on a series of legal reforms to meet the needs of the expanding Roman Empire (it had topped 100 million persons); also to address the political abuses of his assassinated nephew, Caligula.
Among his legal reforms, regulations were enacted to provide for the formal schooling, training, and licensing of lawyers. Under Claudius’ legal reforms, lawyers were allowed to charge fees for their legal services, but these were capped. The military was also assigned lawyers to advise commanders in the field on the law of war. While physical brawls (some leading to death) between lawyers had been common in Pre-Claudius Rome, civility within the profession was stressed and enforced under his reforms. He had witnessed firsthand under Caligula’s reign, the anarchy that ensued when lawyers neglected the rule of law and became part of the mob.
By the time that Diocletian became Emperor of Rome in 285 A.D., lawyers had become a common fixture in the Empire. They came from every strata and region of the Empire. To facilitate the running of the vast Roman Empire, Diocletian divided it into two parts in 286 A.D. Administering the Eastern half of the Empire himself, and assigning Maximian to administer the Western half as co-ruler. Rome’s lawyers were called upon to draft the needed documentation to ensure a smooth transition. Roman law and the regulation of lawyers continued as before in both parts of the divided Empire.
With the fall of the Western half of the Roman Empire in the 5th century A.D., the Eastern half, headquartered in Constantinople, assumed the mantle of Rome. It would live on as a successor state for another 1,000 years. Historians came to refer to it in the 16th century as the Byzantine Empire, because of its strong Greek influence. Hence, the term Byzantine Empire has come to reference the Eastern Roman Empire. They are one and the same state.
Lawyers as a class grew in number and influence under the Byzantine state. Legal education became the province of the state, and lawyers were required to study law for four years in state-licensed schools; they also had to join one of the Empire’s court bars; similar to the Inns of Court that were to take shape later in England and pass a written license exam.
The days of the amateur legal advocate were gone. Lawyers had come into their own as professionals and were respected members of society. Civility among lawyers was stressed, and those that failed to comply with the rules of conduct for lawyers were sanctioned or disbarred from practicing law in the Byzantine Empire.
Well into the 15th century, from their ranks came the judges, legislators, governors, and administrators that helped run the Byzantine Empire. Lawyers were also viewed as a stabilizing force in Byzantine society; ensuring that the law and not force, resolved disputes between citizens. When lawyers joined the mob, civil war and anarchy frequently followed. The Byzantine legal model had has a profound (though subtle) impact on the legal systems of Europe, Africa, Latin America, and Asia.
Lawyers in America
During the early colonial period in America, there were no formal requirements for the schooling or licensing of the legal profession. Lawyers were frequently local business persons and farmers, who were self-taught legal advocates. By the time of the American Revolution, lawyers as a class had become leaders in their communities. They accounted for 45 percent of the signers of the Declaration of Independence, and 69 percent of the members of the Constitutional Convention.
By the 18th century, lawyers started to form bar associations and establish law schools. The Litchfield Law School, established in 1789, went on to graduate more than 1,000 lawyers. The Harvard Law School and others followed in the 19th century. U.S. Supreme Court Justice Joseph Story, a Harvard professor, would help establish a national law school curriculum, and one of Harvard’s Deans (Christopher C. Langdell) introduced the case system.
Many of the first bar associations emerged in New York City in the 19th century; their numbers growing to over 1,000 nationwide by 1930. The formal licensing, schooling and disciplining of lawyers had become the norm by the early 20th century. The profession grew to the point where it now numbers some 1.33 million lawyers; with civility being recognized as an important component of the state bar codes of professional conduct that govern lawyers. It is firmly understood that if lawyers are an important component of governance. That when they are not civil to each other or join the mob, the profession and society as a whole suffer. Dogma does not supplant 2,000 years of law.
Lawyers Act as a Firewall
While Shakespeare fumed at lawyers because they posed a check on the autocracy of his Tudor masters, the legal profession is one of the more long-lasting achievements of human civilization. It has played an indispensable role in guiding humanity through its primal pitfalls. Without lawyers to implement the law, humanity would be engulfed in civil strife and anarchy. History does not lack such examples.
In difficult times, lawyers must stay the course. They bear the burden of ensuring the peaceful functioning of society. Not long ago, I had the occasion to discuss the role of civility in the legal profession with an attorney from the former Yugoslavia. He had witnessed the horrors that followed the breakup of that nation. “Civility,” he said “is the glue that keeps the legal profession intact and makes it effective.” Adding, “When lawyers cast it aside, civil strife ensues.” More than two million citizens of the former Yugoslavia were killed, maimed, or displaced when the rule of law was set aside.