Advocacy and legal orders

What is the function of advocacy in a legal order? Why do people want the Vicarious Voice? The actual speaking may, indeed, be incidental to other services such as legal advice or legal protection.

Lord Macmillan opined that it was â€?the experience of every civilised community’ that it was â€?indispensable to have a class of men skilled in advising and aiding the citizen in the vindication of his rights before the courts’.^[25] And one, at least, of his reasons for so thinking was that he evidently believed that every civilised community had what we should call an â€?adversary system’ of justice: â€?It has long been proved that the most effectual and only practicable method of arriving at the rights of a dispute is by critical debate in the presence of an impartial third party’.^[26] Forsyth began his Hortensius with the words â€?...a body of men without whose aid the laws of their country can­not be properly administered or enforced’;^[27] and he quoted Quintilian: â€?For the very laws would be of no effect unless sustained by the voice of a competent pleader’⁴ (though Quintilian was not getting at quite the same point). Greenidge declared that the advocate was â€?a regular feature of all developed iudicature (sic)’.⁵ Yet there have certainly been large and powerful systems of justice in which advocacy - and most certainly regular and professional advocacy - was unknown.

Consider, for example, Islam. That part, the essentially Islamic part, of the law of Muslim communities that belonged in the court of the Qadi, the Sharia, disallowed advocacy and required those who came into court to put their own cases;⁶ the rest of the law, which was not religious, was regarded as essentially administrative, a matter of maintaining the public peace, and so the satisfaction of the claims of the individual was not its first priority.

Should one then, perhaps, see advocacy as characteristically accompanying â€?adversary systems’ (or â€?accusatorial systems’) of legal procedure as opposed to â€?inquisitorial systems’? Or democratic as opposed to totalitarian legal orders?¹¹ â€?Adversary systems’ are battles between parties; the notion of legal

⁴ Quint. Inst. XII 7, 1. Quintilian is there giving a reason why advocates, though properly preferring the role of defence, must not fight shy of acting for the prosecution.

⁵103 Greenidge, 146.

⁶ See 31 Caille. In the secular courts of Morocco there was advocacy, and in the French courts there was the ordinary Barreau. See also 115 Heyd, 243-4.

''272 van der Sprenkel.

⁸ 81 Feifer, ch. XII, â€?Speaking for the defense’.

⁹ 83 Forsyth, 15.

¹⁰ 83 Forsyth, 18; Diod. i, 76.

¹¹ Plato’s hostility to rhetoric is relevant. In the Laws some synegoria is permitted, though see 97 Gernet, cxli-cxlii, with n. 3. 206 Pannick, 242, declares that societies that value human rights must have professional advocates. procedure as a battle in court has been referred to already in the Introduction.¹² We are prone to think of such systems as natural and right because we are used to them.

In fact, the Vicarious Voice is not a necessary or universal accompaniment to an â€?adversary system’, as the Athenian experience, to be described later, shows,¹⁶ nor is it necessarily incompatible with an â€?inquisitorial system’, as in modern European courts, whose procedures are more â€?inquisitorial’ than ours. Nor does it only flourish under democracy. Mitteis remarked, in the Germany of 1891, that the importance of the profession of advocacy â€?is much greater in all non-bureaucratic states than in our own’;¹⁷ but Forsyth, while insisting that advocacy flourishes under free institutions, candidly admitted that one of the great Bars of all time was that of the ancien regime of France (not to mention that eloquence only became important in the English Bar in the late eighteenth century).¹⁸ In spite of all of which, it is fair to say that advocacy implies of a legal order that it cannot be wholly closed to the points of view of

¹² 234 Sawer, quoted in the Introduction, n.

¹³ The Roman principle, too: 140 Kaser, 275.

83 Forsyth, 21: the need for �every argument which ingenuity and eloquence can urge’.

¹⁵ 234 Sawer, 83.

¹⁶ They had the Vicarious Pen, see Ch. II, section 1, below.

¹⁷ 187 Mitteis, 190.

¹⁸ 83 Forsyth, 20 and 351, respectively. those who come into court, nor its decisions wholly unaffected by their arguments.

A modern American academic lawyer, asked to comment on the function of the advocate, gave it three roles:^[28] the investigatory, which means seeing that all necessary work is done to assemble the client’s case;^[29] the argumentative, to secure for that case as effective a court presentation as possible; and the surveillant, keeping an eye on the court itself to ensure that it does not do less than justice to that case. Also worth attention are some observa­tions of R.E. (now Lord) Megarry in his 1962 Hamlyn Lecture. First of all, skill used to produce victory, which so many historians treat as if it had been somehow reprehensible, is to be seen as part of the structure of the living law: �Counsel may be sought out in the hope of that last ounce of strategy that will defeat fearful odds’,^[30] and �Sometimes a percipient advocate can detect the importance of some small point that has lain hid in the mass of materials. A shift of emphasis, a proper setting, and in skilled hands that point can be made to blaze with a terrible light.’^[31] And when we return, as it will be necessary to do,^[32] to that odd dichotomy in the classical Roman law between advocates and jurisprudents - with all the weight of approval of modern legal historians placed upon the latter - what Megarry says about the relationship between academic lawyers and practising bar­risters in the modern English legal order is (mutatis mutandis) relevant:^[33] �A fundamental distinction between academic law and the practice of the law is, paradoxically enough, shown by considering questions of fact. In a phrase, in academic law the facts are clear whereas the law is often uncertain; in the practice of the law, usually the facts are uncertain but the law is clear. A large part of the practice of the law lies in the handling and ascertaining of the facts.’ Another way to put that point would be to say that in a large part of a modern barrister’s work, in courts, at any rate, of first instance, it is not legal knowledge, not jurisprudence, that is involved so much as those capacities that the Romans would have described as oratorical skill and demanded of the advocate.

2.