The Rule, the Role and the Soul of Law

A map to meaning in volatile times

This isn’t how I imagined it would be. I was preparing for a long slog, striving to make a small contribution to the establishment of a new worldview compelling enough to succeed the one which has predominated for the last fifty years. I knew the incumbent perspective was deeply entrenched, but could not see how issues like the climate emergency, sixth mass extinction and exponentially increasing inequalities could be addressed without such a fundamental shift.

It seems I was wrong: at least in terms of what it might take to bring the hegemonic system down. All it requires is flagrant and wide-ranging abuse of power from someone entrusted with enormous authority - and pitiful complaisance by those with the potential collectively to resist.

To the extent that this deals with half the task I was embarked upon (the overthrow of the hegemonic system bit), it goes to show that every cloud – even an orange cumulonimbus thundercloud - has a silver lining.

However, given he seems equally hellbent on replacing it with something even more calamitous, it does mean we need to show much greater alacrity in defining and disseminating our alternative vision, before the poisonous alternative takes root. At least it should shake us out of our complacent, incremental progress towards ‘transition’ and force us all to declare (and, more importantly, demonstrate) where we stand.

How important to us, as solicitors, is upholding the inherent principles of the rule of law? The answer to this leads naturally into (re)considering what we perceive our role as solicitors to be, in our day to day work and our dealings with clients and colleagues. And this, in turn, to assessing what we see as the underlying purpose of our work and the value we offer to society - what we may contribute through all those hours, days, months and years spent at our desks.

I will try to illustrate why each of the rule, the role and the soul of law are significant in their own right, and also the value in understanding the relationship between them. My aim is to encourage engagement with these questions; to create a sense of the possible for the profession at a time when the temptation to keep our heads down (even further than usual) is strong; and to suggest how to make the possibilities a reality.

I will use the Three Horizons framework to help demonstrate how different legal practices might be combined in this present moment to move us, from within the current system, towards a more generative future and how we might be able to facilitate constructive change and change the nature of our work in the process. I will also locate this within the context we are working in, recognising the beliefs and behaviours which make these changes seem challenging, and demonstrating how and why it is possible to reach beyond them. The effect is to make what may have seemed extreme even a year or two ago, feel far less radical than trying to cling to the moribund status quo.

Three Horizons Prelude

It is worth recapping, briefly, the three horizons framework to make its relevance to this subject apparent. The framework uses three ‘horizons’ to illustrate a pattern of change over time (as shown in the illustration). This represents, in any given moment, three relationships of the present to the future.

The first horizon describes the current way of doing things. H1 systems are what we all depend on to get things done in the world today. However, nothing lasts forever, and over time we find that our H1 ways of doing things are falling short and are no longer fit for purpose.

The third horizon is the possibilities of the future system in the present (and so, inevitably, they are tentative, provisional and exploratory). It is those new ways of living and working that will fit better with our emerging needs and opportunities. H3 is transformative, bringing a new pattern into existence, but uncomfortably tenuous for most solicitors used to knowing more certainly what is expected of them.

The second horizon is the space of transition and transformation: of emerging innovations responding to the shortcomings of the first horizon and anticipating the possibilities of the third horizon. It looks to the past and to fit with familiar patterns, whilst also seeking to become the seed that grows into something new.

All three horizons are always present, and each horizon is a way of acting in the moment with a future-focused intent. From each horizon, this is characterised by a distinctive mindset - managerial (H1), entrepreneurial (H2) and visionary (H3). The core idea is to adopt a three-dimensional perspective in which we are aware of each horizon “as a distinct quality of relationship between the future and the present”. It leads to recognising when each of us is inhabiting the mindset of a particular relationship and how we are responding to those with other mindsets; remembering what to value and what to challenge in respect of other mindsets; and that coalescing into a perspective which contributes to the overall progress we are seeking to achieve.

This may sound pretty abstract in isolation, but as we look at the rule, role and soul of the law, I hope some examples will bring it to life.

The Rule of Law

During the years I have worked as a solicitor, if the rule of law has been mentioned at all, it has tended to be in these contexts:

Ø as a reason why the English legal system is trusted and popular;

Ø as a reason why the legal profession should be regarded as a special case, distinct from other professions because we are critical to the continuing smooth operation of the rule of law

Ø as a central component of our professional duty as a solicitor (that is, to uphold the rule of law).

For the most part, despite its significance, and the special status it confers on the profession, it has had limited direct relevance to my work - helped by my good fortune to work within established firms, with rigorous internal systems in place. Recently though, the meaning of the rule of law had started to attract some closer scrutiny. It has been trotted out (dubiously IMHO) as a reason law firms have no choice but to advise on matters which will patently contribute to significant harms arising, if their clients ask them to do so. This opens up wider debates around solicitors’ fiduciary duties to individual clients, illustrating how uncomfortably these sit alongside maintaining public trust in the profession, when we enable activities counter to the wider public interest. Similarly, citing the principles of access to justice and rights of representation (which commonly appear adjacent the rule of law) feels increasingly hollow, when the former is so often entirely means dependent and the latter exists to protect those whose life or liberty is at risk, rather than enabling the wealthy and powerful to enhance yet further that wealth and power. The extent to which these legal principles apply to all comers in practice currently, therefore, is debatable, but it has not been an issue generating much appetite to address.

Turning a blind eye is no longer credible. Trump is openly contemptuous of the rule of law, rubbing his disdain for it in the face of the populace, who remain dependent on it for any sense of being treated equally. The balance of power between executive, legislature and judiciary has broken down as independence of each has been lost (along with the fourth estate of the media) and one man is largely ruling by personal decree with the instruments of state enforcing his whims, following the well-worn autocrats’ playbook. Any source of resistance is threatened with repercussions, forcing, among others, US law firms (and those with a presence in the US) to nail their colours to the mast one way or another. Those inclined to take the path of least resistance now by aligning with those with the power now, and casting legal principle to the wind, may find it a very long road back – and not just for them.

For those of us disinclined to reject such a fundamental tenet underpinning all we do in our work, it is an opportunity to reaffirm the value to society of all of us being equal before the law. We can reconnect with the rule of law as something meaningful to the work we do. It can help us to demonstrate actively (as it is our professional duty to do) our role in upholding te rule of law, whilst also contributing to maintaining public trust in the profession in the process.

The three horizons aspect of this involves defending the rule of law as we know it, so it survives to form a part of the new horizons emerging – indeed being a significant aspect of that process of emergence.

The role of lawyers

Resisting the autocratic urges of the US President is one important action lawyers can collectively undertake. There are others we can perform much more consistently in our daily work, again to significant effect.

Katharina Pistor describes, in her book The Code of Capital: How the Law Creates Wealth and Inequality, how over the centuries the legal profession has interpreted the laws of the day in ways which favour the interests of their clients. This is what we are supposed to do, of course, but the cumulative effect of this has been to create a legal system which entrenches power and wealth in the hands of a few at the expense of the many. The many have generally been too busy getting on with their own lives to pay much attention to this, or if they have, they have not had the means to do anything about it. The lawyers have largely been left alone to get on with their lucrative work.

We are now in a time when senior figures from the worlds of banking, insurance and actuaries are publicly sharing their assessments that we are on a course for a 3℃ world. They are acknowledging this may mean many insurance markets will no longer be viable, which in turn means credit will not be available, which means, as the dominoes fall, potential economic collapse.

Can it be right that the response to this – by lawyers and their clients – should be the hackneyed ‘keep calm and carry on’? Pistor provides example after example of the power lawyers have exercised ‘doing the day job’ down the years, away from governmental chambers, the courts and, for the most part, the public gaze. It is a role of considerable potency, and with great power comes commensurate responsibility.

If lawyers can code the law towards one objective, they are surely capable of coding it towards others. There are pockets of evidence of this happening in recent years. The B Corp movement has been demonstrating how businesses can be constituted and operated in ways which are compliant with company law, achieving commercial success without having to exploit their stakeholders as vigorously as each will bear. Innovative businesses like Faith in Nature and House of Hackney have adapted their governance arrangements so that the impact of their activities on nature (and, in the latter case, also on future generations) has to be taken into account in their decision making. EarthPercent is a movement of artists offering a percentage of their royalties to a fund for nature in recognition of their dependence on the natural world – something crying out to be adopted by progressively inclined (not to say PR-savvy) businesses.

There are many examples of inventive strategic litigation cases being brought, as well as legal opinions on extensions of the fiduciary duties of various parties to take into account the circumstances in which they are performing those duties. These include company directors (eg in relation to nature-related risks), financial intermediaries (in relation to sustainability issues and systemic risks) and legal requirements for accounting practices which reflect the reality of how the world works (such as the double materiality principle) rather than the fictions of accountancy practice (moving liabilities off balance sheet or off shore as if they can be fired into orbit and forgotten about).

These innovations have captured the attention and imagination, but remain very much outliers currently. This is largely because clients frequently do not know they are options that are open to them; or they do not understand what the benefits of adopting them may be, taken in a wider context; or they fear that they will be criticised (or worse) for adopting such different approaches. This reflects a failing on the part of their legal advisors in not making them aware of the alternatives available to them and their implications. Instead, each party to the relationship tends to persist with their ingrained assumptions about what the other wants or needs (or has to offer) and another opportunity, not only for positive change, but the building of momentum towards a different mindset, is lost.

However, lawyers who familiarise themselves with these innovations and their potential, who see how they might be adapted and improved upon, and who advocate for them with clients whenever it feels appropriate to do so, exhibit second horizon practice. They offer a constructive response to the challenges and constraints our clients are increasingly having to confront by proposing alternative ways of doing things, potentially creating the conditions for the third horizon to emerge.

Contextual Interlude

Before we get into the soul of the law, it feels appropriate to acknowledge how challenging the current context is, for us all and particularly for lawyers, as this ultimately offers added grounds for stepping into this space rather than shrinking back from it. This section is in tabular form as hopefully most of these will be immediately recognisable to solicitors reading and they can mentally tick them off in preparation for what is to come.

1 Tension: the private client / public duty tension (an atomised duty in an interdependent world)

Established Expectations: a solicitor must do their best for each client on a case by case basis

Emerging Expectations: no solicitor, or their clients, exists in isolation from the impacts of their advice, or the actions of every other client they advise, or the advice of all other solicitors and the actions of all their clients.

2 Tension: the social infrastructure vs. commercial tension

Established Expectations: a solicitor is part of the pillar of social infrastructure that is the law, required as such to fulfil particular professional duties including upholding the rule of law and public trust in the solicitors’ profession

Emerging Understanding: a solicitor works within a commercial business and is dependent both on attracting clients to pay for legal advice and for their firm to be profitable in order to provide them with an income.

3 Tension: the promise of certainty in an uncertain world

Established Expectations: a client seeking legal advice wants to come away with certainty, an answer, a solution

Emerging Understanding: the context in which solicitors and their clients are operating is increasingly understood to be volatile, uncertain, complex and ambiguous, making the promise of definitive advice less and less credible and the nature of the client-solicitor relationship increasingly open for redefinition

4 Tension: the stance of being non political and/or excluding ethical considerations in a space which is profoundly political and has ethical ramifications

Established Expectations: there is a body of opinion within the profession that holds it is not for the solicitor to reflect a political position in their work, or to take moral or ethical considerations into account. They must remain objective (whilst acting in their clients’ interests)

Emerging Understanding: as the ramifications of human activity for the future of humankind and the rest of the natural world become more acutely apparent and as any position on these issues is deliberately drawn into the political discourse, staying silent or refusing to take matters into account becomes a political position in itself and to discount ethics risks blurring the line between an amoral and an immoral stance.

5 Tension: the law as the path to justice vs the law as the protector of property

Established Expectations: the SRA Principles require solicitors to act in a way which upholds the proper administration of justice and which also upholds public trust and confidence in the solicitors' profession

Emerging Understanding: if the law is regarded as an instrument for the wealthy and powerful to exert control, rather than a means for all people to have equal recourse to justice, upholding the rule of law and administration of justice becomes a contested space, alongside the role of the solicitor within it.

6 Tension: the inherent conflicts for solicitors arising out of each of the above

Established Expectations: concepts of what is a conflict of interest is for a solicitor and how it is to be managed pre-date the current context and may not be adequate for specific relevant conflicts emerging

Emerging Understanding: these conflicts need to be acknowledged, by advisors and clients, and more scope to exist for parties to agree, on an informed basis, how to work collectively and collaboratively to common ends, rather than always being assumed to be in opposition to one another.

The Soul of the Law

It is hard to imagine sustaining credibility as a lawyer if you undermine the rule of law. Having recognised the relevance of the law within our social infrastructure and the power lawyers have to impact the interpretation of the law in their day-to-day work, the next step is to consider how we might use the position we have and the work we do for positive effect, that is why we do this work – now and in the coming years.

Unsurprisingly, the Solicitors Regulation Authority (the SRA) makes no reference to the soul in its Principles for solicitors’ conduct, or anywhere in its guidance for solicitors. However, if we consider (as we must) the context sketched out above, there are a number of issues which both make it difficult to do the job within the regulatory and commercial constraints solicitors face and encourage us to carry out our duties notwithstanding in doing so we are contributing to foreseeable and material harms. Whilst there has always been a degree of collateral damage, not just with the law, but many activities, we are at a moment in time where the scale of this cannot be ignored and which impels us to change how we approach our work and our client relationships.

I admit I can see the issues these tensions create for lawyers going about their work – but not necessarily the solutions yet. However, this seems to me apt, given we know the system the profession has done so much to establish and buttress is no longer fit for purpose and in decline; and that there are intimations in the ether of the future system we need to design. These, too, are in need of legal coding, but in service to a different worldview.

The three horizons framework again feels pertinent. Not only do we need some lawyers to focus on protecting the rule of law principles to support the new system in the way it did the old, but we need others willing to step into uncertainty to create new legal models and approaches (and employers and clients willing to support them to do that). The essence of this was captured last year by Jonathan Rowson, in an essay entitled The Spirit of Law where he states:

“Whatever is going on at a macro scale, 21st-century humans have to do what they can, with what they have, where they are. That means using the law and seeking to reimagine what it can do … the spirit of the law is ultimately a creative spirit, and it’s there to help us protect what we love.”

That combination of working from where are with what we have, but engaging our imagination to interpret (or code) it to suit the times and achieve what is important to us collectively (or, as Rowson, has it, ‘to help us protect what we love’) is an excellent distillation of where and how and why we might find meaning in our work.

This imaginative approach goes beyond innovative interpretations of existing laws to coming up with entirely new ways of looking at old issues. Some of the heavy imaginative lifting is already being done by the likes of Dark Matter Labs, with projects like their work on bioregionalism and new forms of contracting. Their ‘many-to-many’ contracting design both manifests and mirrors the behaviours of the counterparties and is adaptive to changing circumstances as they emerge; their eco-social contracting uses AI to crowdsource contract monitoring and allow the interests of natural features to inform how the parties behave over time; and they have an employment contract which retains the humanity in the relationship rather than squeezing it all out. These have all been created with legal input, but there remains a role for others in translating them into and amplifying them across wider commercial contexts. Other potential areas to deploy legal creativity include redesigning concepts as entrenched as ownership, intellectual property and currencies to suit our times. Dark Matter Labs call this work ‘Beyond the Rules’ and it cries out for legal input to convert inspired ideas into operable, legitimate practice, bringing it within the new emerging system.

Another example is translating the theory of Kate Raworth’s Doughnut Economics into legally robust governance models, legal instruments and policy underpinnings. Through the Doughnut Economics Action Labs popping up on multiple continents, it is already possible to see this superbly comprehensible concept being turned into living practice so, again, the lawyers are not being asked to start from a blank page, but to create a legal architecture for the concepts to be given greater shape and substance.

These would amount to intimations of the future in the present. It is visionary work: transdisciplinary, collaborative, and currently largely alien to legal practitioners. However, at a time when we know we must act and think differently to shift us from the calamitous path we are on, the three horizons model, these initiatives and the exhortations of Pistor, Rowson and others give lawyers all the direction and engagement they need to step into this work.

Mindsets

It all comes back to mindsets – and here too, the three horizons framework has something to offer. It recognises two important dynamics. Firstly, that it is both unhelpful and unrealistic to pit each horizon against the others, whilst at the same time acknowledging both that it is human instinct to associate with the horizon which feels most familiar to you and to be defensive and/or antagonistic towards the other horizons. Secondly, that not only are all three horizons present to some degree at any moment, but that each (if allowed and enabled to do so) has a significant role to play. These mindsets are reflected in the following image, illustrating the sentiments often at play and how they can be acknowledged without having to be either succumbed to or becoming a distraction. As such, it anticipates and shows a route through potential innate resistance to change.

All of this can be mutually reinforcing. The rule of law needs to be ‘hospiced’, to use Vanessa Machado de Oliveira’s phrase, from the current system so it survives and remains of value to the new emerging one. The coding of innovations helps prepare fertile ground from which the new system may emerge and make sense. As they reach sufficient scale to be a tipping point, the mutually reinforcing benefits of the second horizon interventions and third horizon imaginative leaps translate into the new culture, mindset and worldview that replaces the dying system and enables future flourishing.

As I mentioned at the top of this piece, we have even less time than we previously thought, but at least there is a path of sorts for us to start out on.

Postscript: Since writing this, I have become aware of new books by Rob Macfarlane and Rutger Bregman. In the first, Is a River Alive, the author talks of the crisis of the state of our rivers in the UK being “one of imagination as well as of legislation”. He notes how the “duty of care for rivers, who extend such care to us, has been abrogated” (note the choice of pronoun) and asks, “what might flow from recognising rivers as both alive and killable in terms of imagination, law and politics?”

In the second, Moral Ambition, Bregman identifies four types of jobs as described in the graphic below:

I can’t resist noting that embracing the ideas in this post is a way to respond positively to Macfarlane’s exhortation and doing so also offers the potential to move our work from Category 2 to the more desirable Category 4.

So whilst the political zeitgeist may not feel too accommodating at this moment for what is discussed in this post, some serious thinkers, at least, are aligned.

Postscript II: And then the Attorney General of Florida publishes this document which denounces various organisations and initiatives in hysterical terms, almost amusing but ultimately chilling, and a further reminder of the extent to which some lawyers are conspiring to undermine the rule of law and democracy and how important it is the rest of us resist.