“The first thing we do, let’s kill all the lawyers,” shouts one of the leaders of a revolt of the rabble in Shakespeare. That must sound good to
The idea of lawyers as the vanguard of a democratic revolution makes a certain intuitive sense. Resistance to Musharraf, after all, is fundamentally about insisting on the rule of law--which is, at least in theory, the stock in trade of the legal profession. The general is flexing raw and arbitrary power. Lawyers, by contrast, deal in precisely the opposite: principles, evidence, and rules. A clear thematic link, in other words, has tied the profession to the cause even before Chaudhry began challenging Musharraf and Musharraf responded by suspending constitutional government. What profession is better suited to lead the charge? Dentists?
Yet intuitive as it may seem, revolts by the bar are not a traditional means of overthrowing tyrants. To be sure, individual lawyer-revolutionaries are nothing new; some have been great, some horrible. John Adams was among most famous members of the legal profession in the founding generation of this country’s leadership. Maximilien Robespierre helped lead the French Revolution--and the reign of terror that followed it. But the
This is not the profession’s self-image. Many lawyers fashion themselves radicals and defend unpopular causes or individuals accused of heinous crimes. They think of themselves as taking on the system. But there is, in fact, nothing radical whatsoever about such work, which is an essential feature of our system.
Lawyers, as a professional cadre, are largely concerned with the rules as they are. They advise clients about how to stay out of trouble with those rules. They help clients evade accountability for breaking them. They advocate for changing them. But the nature of the legal profession is that lawyers almost always operate within the system. This is obviously true in routine legal work. But it’s almost as true in extraordinary cases--when Guantánamo detainees take on the Bush administration, for example. The lawyers who represent those detainees are not asking for fundamental change in the American system. They are asking an institution of that system to read a foundational document of that system in a fashion advantageous to their clients and, they may well believe, to American law and life more generally. It is exceptionally rare for the task of a lawyer to be anything other than an exercise in validating the organizing principles of his or her society. Nor should it be--at least in a society in which the rules are reasonable and subject to change by democratic means.
But then there’s
I suspect there’s another reason why
Very few authoritarian countries would let such a cadre develop. You won’t see North Korean lawyers storming Kim Jong Il’s palace; if there are any lawyers in
It does not necessarily mean that democracy, which has had previous false starts in
And it poses a stark choice for Musharraf: When a society has reached this point of expectation about the law, an authoritarian ruler can no longer afford the light touch. He can either accommodate the expectations and liberalize, or he can repress. Musharraf, for now, seems bent on trying a third way, in which he suppresses the protests in the short terms while promising elections and his own resignation as head of the military (though not the restoration of the judiciary) in the longer term. This probably won’t work. The lawyers in the streets know the difference between the rule of law and the rule-of-law-as-long-as-the-law-doesn’t-rule-in-a-way-the-military-superstructure-deems-unacceptable. And Musharraf knows they know. That’s why, if he’s not yet killing all the lawyers, he’s at least arresting them.
BENJAMIN WITTES is a Fellow and Research Director in Public Law at The Brookings Institution and a member of the
By Benjamin Wittes