Attack of the Lawyers!

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POLITICS NOVEMBER 12, 2007

Attack of the Lawyers!

“The first thing we do, let’s kill all the lawyers,” shouts one of the leaders of a revolt of the rabble in Shakespeare. That must sound good to <?xml:namespace prefix = st1 />Pakistan’s president, General Pervez Musharraf, just about now. <?xml:namespace prefix = o />


In Pakistan, the lawyers are the revolt. Even as the country’s political parties initially dithered, its bar took to the streets, protesting emergency rule by the country’s polished yet thuggish president. Clad in black suits, the lawyers have rallied behind the dynamic, ousted chief justice, Iftikhar Mohammed Chaudhry, and confronted police. Many have been arrested. Pakistani lawyers have become the Burmese Buddhist monks of their country. Georgia had its Rose Revolution, Ukraine its Orange Revolution. Pakistan is in the midst of a Billable Hour Revolution.


The idea of lawyers as the vanguard of a democratic revolution makes a certain intuitive sense. Resistance to Musharraf, after all, is fundamentally about insisting on the rule of law--which is, at least in theory, the stock in trade of the legal profession. The general is flexing raw and arbitrary power. Lawyers, by contrast, deal in precisely the opposite: principles, evidence, and rules. A clear thematic link, in other words, has tied the profession to the cause even before Chaudhry began challenging Musharraf and Musharraf responded by suspending constitutional government. What profession is better suited to lead the charge? Dentists?


Yet intuitive as it may seem, revolts by the bar are not a traditional means of overthrowing tyrants. To be sure, individual lawyer-revolutionaries are nothing new; some have been great, some horrible. John Adams was among most famous members of the legal profession in the founding generation of this country’s leadership. Maximilien Robespierre helped lead the French Revolution--and the reign of terror that followed it. But the Paris mob was not a horde of lawyers. Nor was the army that crossed the Delaware River or the crowd at the Boston Massacre (whose killers Adams helped defend). We think of students and workers manning the barricades in revolutions. European history is littered with peasant revolts. But lawyers as a class are a sedate lot.


This is not the profession’s self-image. Many lawyers fashion themselves radicals and defend unpopular causes or individuals accused of heinous crimes. They think of themselves as taking on the system. But there is, in fact, nothing radical whatsoever about such work, which is an essential feature of our system.


Lawyers, as a professional cadre, are largely concerned with the rules as they are. They advise clients about how to stay out of trouble with those rules. They help clients evade accountability for breaking them. They advocate for changing them. But the nature of the legal profession is that lawyers almost always operate within the system. This is obviously true in routine legal work. But it’s almost as true in extraordinary cases--when Guantánamo detainees take on the Bush administration, for example. The lawyers who represent those detainees are not asking for fundamental change in the American system. They are asking an institution of that system to read a foundational document of that system in a fashion advantageous to their clients and, they may well believe, to American law and life more generally. It is exceptionally rare for the task of a lawyer to be anything other than an exercise in validating the organizing principles of his or her society. Nor should it be--at least in a society in which the rules are reasonable and subject to change by democratic means.


But then there’s Pakistan, where crowds of lawyers are gathering daily in the streets to object loudly to the new organizing principles of their society. This has been possible in part because of the unique role in challenging Musharraf that Chaudhry has played since the president first tried to remove him from office earlier this year. He became a rallying point, a symbol of the rule of law. Yet because of his office, his constituency was the not a political movement but a profession.


I suspect there’s another reason why Pakistan has been different: Musharraf has actually ruled with a light touch for a dictator. Until the last few days, he had not squashed civil society or systematically attacked the independent institutions of Pakistani life. The legal community there is, as a consequence, a rare thing in authoritarian countries: A real legal culture, one that understands that law is something more refined than simple power. Unlike lawyers in Eastern Bloc countries, who were essentially arms of the regime and its power, these lawyers have an evident sense of the same professional norms that animate lawyers in more democratic legal systems. They have a sense of their role in the democratic society to which they aspire.


Very few authoritarian countries would let such a cadre develop. You won’t see North Korean lawyers storming Kim Jong Il’s palace; if there are any lawyers in North Korea, their job title is a coincidence of vocabulary. The country, after all, has no clients other than Kim. Pakistan is different. Its founding leader was a distinguished lawyer, and like other former British colonies, it has a significant legal tradition, one that has now sufficiently developed to put the fear of God--or Chaudhry--into its dictator. That fact is one of the few unqualified bright spots in Pakistan’s ominous-looking future.


It does not necessarily mean that democracy, which has had previous false starts in Pakistan, will now flower there. The legal profession alone cannot sustain democratic government in Pakistan or anywhere else. It is too small and too elite--and its members are, by the nature of their jobs, chronically representing people whose interests differ, sometimes radically, from the interests of society at large. Lawyers are functionaries of democratic government, not its engine. Its engine is voters willing to live under laws to which their representatives consent. But Americans, prone as we are to lawyer jokes and a distaste for lawyers matched only by our litigiousness, should not miss the significance of the fact of lawyers--in their capacity as lawyers and as officers of the courts--throwing rocks at the dictator’s police. It is a marker of some genuine level of indigenous democratic development.


And it poses a stark choice for Musharraf: When a society has reached this point of expectation about the law, an authoritarian ruler can no longer afford the light touch. He can either accommodate the expectations and liberalize, or he can repress. Musharraf, for now, seems bent on trying a third way, in which he suppresses the protests in the short terms while promising elections and his own resignation as head of the military (though not the restoration of the judiciary) in the longer term. This probably won’t work. The lawyers in the streets know the difference between the rule of law and the rule-of-law-as-long-as-the-law-doesn’t-rule-in-a-way-the-military-superstructure-deems-unacceptable. And Musharraf knows they know. That’s why, if he’s not yet killing all the lawyers, he’s at least arresting them.


BENJAMIN WITTES is a Fellow and Research Director in Public Law at The Brookings Institution and a member of the Hoover Institution Task Force on National Security and Law.

By Benjamin Wittes

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