Why Does Liberalism as a Political Ideology Influence the Good Practice of a Lawyer?
Liberalism is a political theory that defines the way of life for some individuals, who base their existence on a series of concrete ideals in their relationships with others and with the state. A liberal citizen generally defends individual rights (such as freedom of expression and freedom of the press), the free market and capitalism, secularism, gender equality, racial equality, private property, democracy, the rule of law, an open society, and internationalism. Therefore, they identify with values such as meritocracy and individualism. From a legal standpoint, a liberal advocates for legal positivism, and a lawyer with these ideals would be a positivist lawyer.
On the opposite end of the liberal and positivist vision, we find the natural law notion of law, which is defined as the ethical and legal doctrine that postulates the existence of fundamental rights determined by human nature. Legal naturalism points to the existence of a set of universal rights, prior to, superior to, and independent of written, positive, and customary law. Natural law, thus, refers to a set of norms or precepts that arise from the very nature or human conscience.
For example, a lawyer with a deep Christian conscience could not fully defend a woman accused of abortion; nor could a communist lawyer defend a businessman accused of violating occupational safety regulations.
The underlying idea in Kelsen’s Pure Theory of Law is the autonomization of law from politics, sociology, morality, and ideology. Ultimately, it seeks to grant law unity and scientific character, establishing it as a positivist discipline. Thus, the Austrian jurist and philosopher opposes legal positivism to natural law, giving a primary and predominant place to positive law as a normative order. Moreover, the author denies known dualisms such as natural/positive law, public/private law, law/state, etc.
In his work, Kelsen pursues scientific analysis, extracting any notion unrelated to the legal production or that goes beyond the strictly legal (also called metajuridical). The scientific character comes from means such as law and administrative acts.
The purpose pursued with the Pure Theory of Law is the scientification of the study of law and its de-ideologization. “By thus discarding all ethical or political value judgments, the theory of law becomes an analysis as exact as possible of the structure of positive law.” Hans Kelsen, Pure Theory of Law, 1982, Ed. EUDEBA, Argentina, p. 134
Furthermore, the renowned jurist points out that the legal system is based on a normative hierarchy (i.e., norms derive their validity from a higher norm). And, like any hierarchy, it has a peak; in this case, the Constitution, which may still have a prior basis in the Basic Founding Norm (which, for Kelsen, would be an abstract concept referring to a positive law that exists above the Constitution). Thus, the supreme norm of the hierarchy refers to a hypothetical basic norm, with a presupposed and unquestioned value. In this way, Kelsen declares:
“A legal norm is not valid because it has a determined content; that is, it is not valid because its content can be inferred, through a logical deductive argument, from a presupposed basic fundamental norm, but because it has been produced in a certain way, and ultimately, because it has been produced in the manner determined by a presupposed basic founding norm. Therefore, and only therefore, does the norm belong to the legal order.” Hans Kelsen, Pure Theory of Law, 1993, Ed. Porrúa, Mexico, p. 205
This grants a scientific character to law, beyond the margins of morality, ethics, politics, or sociology. Consequently, and following deductive logic, in the practical exercise of law, belief in any material ethics implies prioritizing the rights of an insubstantial and non-existent entity over the positive basis of the rights that assist a client.
As a result, the liberal lawyer will be the only one capable of defending with ethical, philosophical, and complete support, while materialist lawyers, whether left or right, will only be able to attend to their clients in a limited manner, as they do not have a comprehensive legal basis like the one Kelsen advocates in his Pure Theory of Law. Therefore, the liberal lawyer is the only one capable of doing an objective and loyal job for their client, as they will have to apply a pure and de-ideologized law.
Additional Elements for Good Practice
For a proper defense, the lawyer must have a positive view of law, but there are also other issues related to the firm that must be taken into account to achieve success in the profession.
Thus, the law firm must be a space of affiliation between disciple and master, with the latter providing the former with personal and emotional tools to always offer the client effective judicial protection. The lawyer must ensure the prevalence of the principle of independence and conscience regarding modes of collaboration and criminal association with the client, so that the freedom of the jurist is not prioritized over the right to legitimate defense. The head of the firm must organize human resources freely, allowing the lawyer to object and comply with the prevailing ideological elements. Likewise, the head must prevent the pupil’s moral qualms from becoming an obstacle to the effective defense of the client, enshrined in the supreme norm (in its article 24.2).
Additionally, it is necessary to maintain and mentor young lawyers so they can become familiar with the firm’s norms and decide, from a position of job continuity, if they feel comfortable with the head of the firm or if, alternatively, they believe it necessary to move to other firms where their concerns or holistic view of the practice are better received.
Understanding the policy of the firm’s head, managing emotional intelligence well, knowing that service provision must be executed with all available legal tools, and with some touches of liberal and positivist ideology, only then can a law graduate become a great lawyer.