Andrew Boon, City, University of London
In our Meet the Book Author Series, the Journal of Law and Society and the Centre of Law and Society provide first-hand accounts from authors who have recently contributed notable socio-legal books to their respective fields. In this post, we hear from Andrew Boon, who has just published a new book Lawyers and the Rule of Law with Hart Publishing in October 2022.
What is the book about?
Writing the history of lawyers’ engagement with the rule of law involved examining roles rooted in rationality, science, and individualism, products of the European Enlightenment. In the political sphere, these aspirations are manifest in constitutionalism, the desire for a self-regulating society in which ‘the people’ are the source of legitimacy and the rule of law the belief system knitting the whole together. This book examines how lawyers helped create the rule of law society, how they evolved as private practitioners to meet its emerging needs and, in the public sphere, assumed crucial constitutional responsibilities.
While the book focuses on England and Wales, consideration of developments in former colonies, Australia, Canada, New Zealand, and the USA, allows comparison across similar systems with distinct environmental challenges. It addresses the question of whether lawyers’ engagement with the rule of law in constitutional and capitalist systems inevitably take the same form and, if different, how and why.
The book is organised in four Parts. Part I focuses on lawyers’ participation in constitutional government, as judges and government lawyers, Part II on private practice and the formation of legal identities, Part III the development of values, and the impetus to regulate accordingly, and Part IV at challenges posed to lawyers’ relationship to the rule of law caused by de-professionalisation.
Why did I write it?
As an undergraduate I was intrigued by lawyers, a curiosity that made them my main research interest. My motivation for writing this book, at least in terms of ‘real world’ impact, was to document and examine the recent experiment with the regulation of lawyers in England and Wales. This largely occurred because of the triumph of an image of legal professions, popularised by Larson and others, as monopolists and rent seekers. While this portrayal was often accurate, it ignored the importance of lawyers and legal professions in supporting the rule of law. Developments in England and Wales were driven by a view of professionalism as redundant, overtaken by modernisation and technology, an inevitable victim of what one noted judge described as ‘consumer fundamentalism’.
Academics interested in this field have often adopted a state narrative that downplays the importance of legal professions in civil society, an indifference which has contributed to de-professionalisation, increasing corporatocracy, and quasi state regulation. The marginalisation of the original legal professions is often taken as a model for other jurisdictions. It seemed particularly important to articulate the case against this trend: to document, analyse, and explain the importance of the rule of law in the neoliberal state. The contemporary context, the emergence of Populism in leading Western democracies and the erosion of constitutional conventions, highlights the need to strengthen rather than weaken lawyers’ roles.
What was my research strategy?
My research questions involved identifying the role of judges, government lawyers, and private practice lawyers developed in relation to the rule of law, how they balanced the demands of individuality and legality, and whether in the changed conditions of modern society alternative ways of supporting the rule of law were necessary. This involved three different approaches, the first an historical analysis, the second an analysis of regulation and the third an analysis of the contemporary context. The material for these approaches differed.
For the first approach, my task was to expose the links between Enlightenment thinking and modern lawyers. This involved an historical analysis (Parts I and II) contextualising the role lawyers and legal professions played in creating constitutionalism, the concepts underpinning individual rights, and the norms characterising societies under the rule of law. Some aspects of this story, such as the emergence of the adversary system, are well documented, others less so. Certain events have mythical status, for example, the trial and execution of Charles I or the Nuremberg Trials. These are foundational, symbolic, or provide a means of accessing thinking at the time they occurred.
The second element was an analysis of regulation (Part III). Describing the regulatory process in the core jurisdictions extends the historical account, but the codes of conduct produced by their legal professions are compared in terms of their contribution to the duties of representation and legality, both critical aspects of the rule of law. The final part of the book highlights the constitutional weaknesses exposed by neoliberalism, populism, and the polarisation of politics. It considers contemporary threats to the rule of law, concluding by examining Brexit and the insurrection by supporters of Donald Trump in January 2021. The materials for this part, both theoretical and factual, were more contemporary and often journalistic.
The book differs from the many excellent sources examining the philosophical underpinning of the rule of law because it offers an empirical examination of the rationale for the legal role and its translation into values, norms, and regulation. While no such account could be exhaustive, I have attempted to distinguish others by providing a broad context and a wide overview and analysis. In the Epilogue I suggest that the role of lawyers in supporting the rule of law needs to be recognised and strengthened across the range of legal roles in which it is manifest.