The law may be an ass, but lawyers do not have to be arseholes
“The first thing we do,” wrote William Shakespeare in 1598, “let’s kill all the lawyers.” The clarion call had appeared in Part II of the novel, Henry VI. Shakespeare himself, a study of the text itself reveals, was not really endorsing mass attorney-cide since the character who mouthed the words, Dick the Butcher, was part of a questionable and unsuccessful rebellious movement led by Jack Cade. It has been suggested that lawyers, who helped maintain stability and order in the society, had constituted a hindrance to Cade’s aspiration to the throne despite his lowly social status. Hence, the suggestion that they be done away with.
But it is not Shakespeare’s true intent that should interest us as much as the question of how come the quote has been widely misconstrued till date. It certainly reflects general anti-lawyer sentiments in the public. Legal practitioners — much like policemen — are arguably seen as a necessary evil. In Nigeria, lawyers are perceived to be in cahoots with the political class in robbing the nation’s treasury, subverting the will of the people as expressed through the ballot, and victimising the poor. They are seen as enablers of bad leadership and the final line of defence for corrupt politicians. So, when someone proposes we “kill all the lawyers” — or the more popular one in Nigeria, “lawyers are liars!” — though no one would go as far as taking up arms, people seldom disagree. And you know this because they laugh. They get the punchline. It hits a chord. And why wouldn’t it?
The work of a lawyer can be approached either moralistically or somewhat nonchalantly. We could say lawyers are only doing their jobs in exploiting loopholes in the statutes to their clients’ advantage. We could cry that every suspect is only presumed guilty until the gavel says otherwise and that even if a person were guilty as charged, he still deserves to be fairly represented. And we would be right. But we must also ask ourselves if a line ought to be drawn somewhere in this discourse that should be never be crossed. How far is too far when it comes to legal representation? Is it right to suggest that cases be appealed even if the grounds lack merit just so the law firm can make a couple extra bucks? Is it right to delay legal proceedings using interlocutory appeals and other tactics intended to wear out the other party? Is it right for magistrate judges to give a green light for the continued detention of suspects who do not reasonably constitute threats to the public or the case? Just how far is too far?
In the subsequent pages, you will come across excellent essays such as one challenging conventional practices on plea bargaining, which has been abused to favour the corrupt ruling class and let them off the hook with a slap on the wrist in the face of damning evidence. We have an author exploring the possibility of the International Criminal Court intervening to curb crimes against humanity that have characterised the insurgency and counter-terrorism efforts in Nigeria. Another group of writers delved into the question of what rights are available to pre-trial detainees and what the international best standards are.
Then again, we have articles shedding light on such murky concepts as financial technology, artificial intelligence, music sampling, transdisciplinary health law, and even how to navigate frustration of contractual duties in the face of the COVID-19 pandemic. Another discussion young lawyers should be having though is on how to institutionalise pro bono services in the country such that access to quality representation is guaranteed to people irrespective of their backgrounds.
Moving on, a remarkable interview with Professor Gbolahan Elias, son of the legendary Dr Taslim Olawale Elias, is yet another gem safely deposited within the pages of this compilation. His account of his climb to the top contains practical guides for law students and young wigs hoping to ascend in like fashion through their careers. Besides, it is said that while there are countless ways to fail, the roads to success are very few. Among other pieces of advice given by the distinguished Senior Advocate of Nigeria, he urged young lawyers to “look for good mentorship, ask questions when in doubt” and read books from various experts on the law to enhance their knowledge.
For years, Nigerians have had to put up with constant assaults to their supposedly inalienable and fundamental rights. The rule of law has been turned on its head and blood no longer circulates to essential organs of the society. Mockery is been made of the criminal justice system, admittedly through connivances with ministers of the hallowed temple of justice. And we have to ask ourselves: Just how far is too far? Just when do we stamp our feet and say we have had enough?
Even though stability is important and sometimes maintaining the status quo is wise, as represented by the lawyers in Shakespeare’s play, we must agree that the legal system needs reforms, and it is only lawyers — the younger generation especially — who can bring this change.
Remember Thurgood Marshall (who, by the way, famously remarked that “you do what you think is right and let the law catch up”) and his passionate fight for the civil rights of people of colour. Remember Nelson Mandela and Oliver Tambo and how they used their legal practice to champion the rights of the oppressed during South Africa’s apartheid period. Remember Ruth Bader Ginsburg and her exceptional advocacy for the rights of women.
To quote the words of Lord Alfred Denning, himself a notorious and highly celebrated legal reformer, in the 1954 landmark case of Packer v. Packer:
What is the argument on the other side? Only this, that no case has been found in which it has been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere. The law will stand still whilst the rest of the world goes on; and that will be bad for both.
Nigeria does not need more lawyers who are ready to take whatever brief as long as it looks good in the account books. We do not need more judges ready to balk in the face of pressure even though innocent people might rot in jail and the guilty might walk free. We do not need more Barristers and Solicitors of the Supreme Court of Nigeria who exploit the flexibility or rigidity of legal instruments as they bend a knee to injustice.
The donkey (ass) has a reputation for being remarkably stubborn unlike its evolutionary first cousin, the horse. You can force a horse to the river but cannot force it to drink, they say. But the donkey would not even follow you to the river if it thought the trip could put it in harm’s way. Hence, the prominent expression in Charles Dickens’ Oliver Twist: “the law is an ass — a(n) idiot”. The law, when applied too rigidly or too flexibly, can be blind to the realities on the ground and the requirements for justice. But there is some good news: While the law may be an ass, the fate of the justice system is not irredeemable as it rests on lawyers resisting the temptation to be assholes.
This piece, written in October 2020, was originally published as an editorial in the T.O. Elias Magazine published by the T.O. Elias Law Chamber at the University of Ibadan and available for download here.