Scotland, the Rule of Law and the Training of Lawyers
Today, Scotland is voting for independence from the United Kingdom. Parliament has permitted the plebiscite, and the Queen is staying neutral on the vote. This is remarkable. It is a testament to the Rule of Law and the advance of representative democracy that this moment rests on a vote of the people of Scotland. Yes or No, a vote of self-determination stands in stark contrast to centuries of war between Scotland and England. Hadrian’s Wall was a barrier between Rome and Scotland, and neither the Emperor, the Pope nor the Crown has been particular attentive to the will of the people for most of two millennia of history on their island.
The Magna Carta was first executed in 1215, and as we approach a big anniversary, here are the people voting for independence. The vote will count, and there is not a threat of war. We know something about war with England, and our Declaration of Independence is a legal document setting forth grievances and claiming relief consistent with the Magna Carta, the limited sovereignty of the Crown and English common law. The Americans were asserting their rights as British subjects, and independence was the remedy. In 1776, the Crown did not abide by the will of the people who sought their own sovereignty.
This moment in history is rare and beautiful, whatever the outcome. It is adherence to the Rule of Law, not violence. It is the shifting vicissitudes of politics and economics, manifest in a popular election that gave rise to an initiative authorized by a legislature to welcome a vote on a matter of sovereignty and national standing. Through decades of political organizing within a constitutional system centuries in the making, a nation gets to vote on independence, without risking a war.
Last week at our law school, we hosted a judge, lawyers and students from the Honourable Society of the Middle Temple. I sat beside an English judge and mooted an appellate argument between English and American law students, and we all understood the work at hand, the law and the process of making Common Law. We owe our traditions of the Rule of Law and representative democracy and mixed government to British lawyers, and this fascinating, historic day drives home to me the critical importance of teaching lawyers.
Lawyers are the operatives of the Rule of Law. We shape, manipulate, reform, advocate, organize, negotiate and criticize the law. When we exploit our power and influence, we invite violence, vigilantism, instability, injustice and war. When we do our work with integrity, courage and excellence, we invite trust and submission to the Rule of Law. The expanding Rule of Law, opening a place at the table for more and more people to participate in the system, promotes peace, justice and prosperity. Access to justice accelerates the vision of our Founders in 1776 and the Barons on Runnymede in 1215, that the people might be their own sovereigns. This liberty exists only if the people bear the burden and opportunity of their own government.
The Preamble of the ABA Model Rules on Professional Conduct calls lawyers “public citizens,” with an obligation to ensure the expansion of access to justice, of representation in the system that would govern them and us. Trust in the Rule of Law, trust in our system of justice, trust in republican, representative democracy, all depend on the people’s access to justice and the political system.
For better or worse, the burden of this trust rests on lawyers who are the expert gatekeepers and practitioners of our common, constitutional life. Whether we prosper in peace and democracy or whether we descend into cynical, self-serving war depends on the lawyers. Teaching and training lawyers is a high calling. We are not training mercenaries bent on profit. We are training public citizens upon whom the social order rests.