Law & society

As the rule of law re-emerges as a vital and resilient pillar of the constitution, should lawyers extend their pro bono and use their skills to help rebuild society, asks Jolyon Maugham QC?

Back in 1992, the then obscure American academic Francis Fukuyama argued that we were witnessing the end of history. 

We had reached ‘the end point of mankind's ideological evolution’ and the ‘universalisation of Western liberal democracy as the final form of human government’. Events have, it might be fair to say, tested Fukuyama’s hypothesis. The world around us is changing. It is changing in ways it has always changed. But it is changing in new ways too. And we as lawyers are responding.

The drivers for that response differ. For some lawyers, it has always been part of the social compact that they make their professional skills available to those who might not otherwise be able to afford legal help. Others – especially those working at the cutting edge – are seeing at first-hand the practical effects of the legal aid cuts. For those on the outside, with no way of accessing it, the law can look like a rich man’s taunt. And the appalling neglect of the concerns of residents of Grenfell Tower projected that taunt onto the widest of canvases.

The history of our profession is rich with social engagement. I draw inspiration from what my friend, Stephen Ravenscroft, now a Partner at White & Case, told me about his Dad. Brian Ravenscroft worked in Bradford as the local solicitor. And every week, on Friday night, he would dispense legal advice at the kitchen table of the local Imam to a long line of worshippers from the mosque. And at 9pm sharp, the Imam would close the door on any stragglers and thank Ravenscroft (Snr) with endless bowls of curry.

But what is new, perhaps, is the re-emergence of the law as a mechanic by which we seek to channel and deliver political imperatives. This may or may not be a good thing – there is room for reasonable people to differ. But, given the broader context, it is hard to argue against the proposition that it is necessary.

Even the most enthusiastic supporters of Brexit must have been faintly depressed by the last year. Our First-Past-the-Post system has not proven especially adaptable to political fractures that cross party lines. And the demands of interpreting the vague mandate of the Referendum result have paralysed the Executive. But not so much as to impede it in its attempts to wrest ever more power from the hands of Parliament.

But the rule of law, despite the best attempts of certain parts of the Fourth Estate, has emerged as the most vital and resilient pillar of our Constitution.

There has been a silver lining. The Brexit result has shattered the complacency of the past. Orthodoxies – that a particular style of Western liberal democracy was secure – are under pressure. And all across the political spectrum there is a clear sense that there are battles ahead that need to be fought and battles ahead that need to be won. And many more of us – from all across society and the legal profession – want to participate in those battles. The recent record of our political class is such that we no longer feel comfortable leaving in their hands the stewardship of our society.

What happens now? What are the specific challenges for the profession? I will be delivering the Annual Queen Mary University of London Law and Society lecture on the subject later this year.

But perhaps the most interesting question is this: How do we square the conceptual underpinning of the cab rank rule with a trend towards lawyers publicly aligning themselves personally and professionally with particular political stances? My view – I appreciate many will not share it – is that the emergence into the light of the lawyer prepared to use her skills to shape society as she sees fit is a positive development. We may all be equal before the law – we may – but it’s hard to contend that the law is equal before us. The law, by describing ideas about the moral and commercial and philosophical shape of our society, entrenches those ideas. They may be right or they may be wrong. And their making may rightly be a job for a Parliament with a democratic mandate. But a challenge to their consequences should not be the exclusive preserve of politicians. How do we regulate that sort of lawyer? 

Contributor Jolyon Maugham QC is director of the Good Law Project

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Jolyon Maugham QC

Jolyon has a predominantly litigation-based practice in the fields of direct and indirect tax. He is Director of the Good Law Project and runs the blog waitingfortax.com.