Babylon, the Rule of Law, and Professional Ethics

In 1750 BC Babylonian King Hammurabi’s Law Code became the first recorded instance in which a ruler acknowledged a higher authority (the gods Anu and Bel) to give legitimacy to his laws. Those laws were created to ensure an orderly and just society, to prevent the strong from oppressing the weak and to ensure that justice is done. This was the first, ancient precursor to the ideal that is the rule of law, which demands that all respect and are equal before the law.

From the Code of Hammurabi to the Magna Carta, to Dicey’s three conceptions of the rule of law [1] and Lord Bingham’s statement of the eight principles of the rule of law, there remains much ambiguity about what this ideal encompasses, although it has been expressed in many different ways as a concept or set of principles. These principles cover a range of matters that have practical implications for us all, such as access to justice, independent and impartial courts, transparency in executive decision-making, fair and rational decision-making, and government accountability. Britain’s respect for the rule of law is one of the reasons our legal system has long been the envy of the world, but recent events have placed the rule of law in a precarious position. These include: new legislation that threatens to further reduce the system’s checks and balances by limiting the scope of judicial review, which so many rely on to protect and uphold their rights; proposing new legislation which breaks international law; reduced access to justice; and public criticism of judges as “enemies of the people” and lawyers as left wing “activists” or “professional enablers” who place their clients’ interests above the rule of law.

Upholding the rule of law is the joint responsibility of politicians, academics, lawyers, judges, civil society, regulators, public authorities, and educational establishments. Lawyers are key actors when it comes to the rule of law as they ensure its effective operation. But what are their obligations in respect of the rule of law and how can those that regulate the profession best support them?

Lawyers have a core professional ethical obligation to uphold the rule of law as well as to meet their other professional ethical obligations – acting with independence, honesty, integrity, in a way that upholds trust and confidence in the profession, and acting in the best interests of each client. Despite this core expectation that lawyers uphold the lofty principle that is the rule of law, to date none of the regulators have comprehensively spelt out the behaviours that are required of lawyers in this regard, particularly where this may cause conflict with acting in the best interests of the client. Lawyers are perceived by society as guardians of the rule of law, so it follows that their conduct is capable of undermining the rule of law and proper administration of justice. Examples of this include a number of high-profile matters where lawyers have been criticised for failing to balance their professional ethical obligations, such as in the Post Office scandal, Royal Institute of Chartered Surveyors case, the misuse of non-disclosure agreements, and the emergence of Strategic Lawsuits Against Public Participation (SLAPPs) to name but a few.

In a constantly evolving and complicated world where lawyers are faced with increasingly complex professional ethical dilemmas, what it means to uphold the rule of law in everyday practice, whether in respect of litigation, criminal, commercial/corporate, or other areas of law, must not only be made clear but be front and centre of a lawyer’s mind.

As a starting point, this necessitates a cross-sector debate which the LSB intends to convene next year, and ultimately consensus about the behaviours expected of lawyers to uphold the rule of law, and how it should shape their actions. This should include consideration of whether the rule of law as a concept should be extended to a wider set of values more reflective of those of the society in which they exist.

Regulators, education, and training providers have a role to play by ensuring that education and training instils the important role that lawyers play in society to uphold the rule of law and the expectations of them in this regard on qualification and throughout their legal careers. But much can be achieved through leadership from within the sector and the creation and support of workplace cultures that allow the space for lawyers to discuss professional ethical dilemmas which may come into conflict with upholding the rule of law, and associated learning.

Unlike the ancient empire of Babylon, a lawyer’s professional ethical obligations to uphold the rule of law should not be shrouded in mystery.

[1] no man could be lawfully interfered or punished by the authorities except for breaches of law established in the ordinary manner before the courts of land; no man is above the law and everyone, whatever his condition or rank is, is subject to the ordinary laws of the land and; the result of the ordinary law of the land is constitution.