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There’s nothing that lawyers shouldn’t do

By Charles Foster

A patient in his 40s with locked-in syndrome, referred to in court only as ‘Martin’, wants to die. His wife cannot bring herself to help him. He would therefore need help from others. He is concerned that would-be helpers might face prosecution under the assisted suicide legislation. In the latest line of attempts to clarify the way that the law of assisted suicide actually works, he will challenge, by way of judicial review proceedings, the criteria used by the DPP in deciding whether or not to prosecute people who assist suicide. The exact nature of that challenge doesn’t matter for present purposes. What does matter is that his lawyers, in preparing the judicial review proceedings, might have to do things that fall within the (necessarily) wide ambit of the offence of ‘encouraging or assisting suicide’. They might, for instance, have to communicate with Dignitas, and find out whether there is a doctor who would be prepared to assist.

Martin’s lawyers therefore sought and obtained a declaration that they could prepare his case without putting themselves in jeopardy. This was hypercautious, and perhaps artfully, strategically melodramatic. But one can hardly blame them for wanting to be safe, and of course it was right to grant the declaration. Whatever one thinks of the morality of assisted suicide or the legal merits of the judicial review application, the court door must be open to everyone. Lawyers must be able, freely and fearlessly, to facilitate the making of even absurd, outrageous, and downright evil submissions. To facilitate an evil submission is a good thing – a public service: it allows the court to express its disapproval.

Law is not an immutable monolith. It doesn’t spring fully formed from the loins of the legislature. It is chiselled by all sorts of people – but most notably by judges, assisted by the contentions of lawyers – until it’s workable and fits the demands of the society it is supposed to reflect, serve and sustain.

Lawyers, then – and particularly the most cynically mercenary of litigators – are essential public servants. Their professional ethics demand that they put personal preference to one side in fulfilling this function.

This is very costly for the lawyers themselves – although I’m not expecting much sympathy. St Paul observed that a man who sleeps with a prostitute ‘becomes one with her’ – unites his soul with her. And when he pulls away he leaves a bit of his own soul behind. Eventually he’s not got much of his own soul left: it’s distributed around the brothels.

It’s rather like that with lawyers. Lawyers stand on metaphorical (and sometimes actual) street corners with their gowns hitched up, ready to sleep with whoever drives up. If you identify sufficiently with your client, you’ll eventually lose what you are. That great theologian Horace Rumpole noted that the first casualty of the law is sensitivity. The second is your soul. Lawyers, for a decent hourly rate, make a Faustian bargain. It’s negotiated by their Mephistophelean clients, but the soul’s ultimately eaten up by the Greater Good.

Note what’s really happening here. The lawyers don’t, at least at first, change their own beliefs. Personal morality isn’t ablated: it just keeps its mouth shut, thinking, because of the Bargain, that it’s not entitled to a voice. Philosophically minded lawyers might try to justify the Bargain to themselves in the early hours of the morning by saying that the public utility of free expression is a good so great that its service (even when it means the truncation of oneself) is perfect freedom.

The trouble with not using voices, limbs and consciences is that they atrophy. Being a lawyer is desperately dangerous. But the risk isn’t taken just for £400 an hour: it’s taken for you. I hope you’re grateful.

So: by signing the professional register, lawyers have signed away the right to conscientious objection.

But they are, I think, the only professionals who do this. Julian Savulescu is wrong to insist that a doctor who refuses to do abortions should – at least if there’s an insufficient supply of abortionists – forfeit her right to be a doctor[1]. A doctor who leaves her conscience along with her shoes outside the operating theatre is simply a bad doctor. Whole human beings need to be treated by whole human beings, and a doctor whose conscience has been excised pursuant to some misguided deference to supposed professional obligation is not a whole human being. Just as a proper doctor is not a mere functionary, doing what the patient insists, so a proper Parliamentarian is not merely a mouthpiece, slavishly parroting, but in Parliamentary language, what his constituents say. Burke rightly said: ‘Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.’[2]

Lawyers – or at least litigators in any country where the courts can be trusted- are in a unique position. Their right of conscientious objection evaporates because, if it persisted, some things might be left unsaid, unexamined, and unjudged – to the detriment of the society of which we are all a part. There are no compelling analogies with other professions (and no, journalists don’t come close).

So: hug a lawyer: he’s risking damnation on your behalf.


[1] Conscientious objection in medicine, BMJ 2006: 332; 294

[2] Speech to the Electors of Bristol, 3 November 1774: Works 1: 446

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