Legal philosophy: The pursuit to becoming a ‘successful legal practitioner’ as a post-graduate practitioner Name: Corey Gauci Student No: 20101985 ‘Subject: LW350 — Legal Philosophy Due date: 24 November 2014 Corey Gauci LW350 - Legal Philosophy 1482 - SydneyCONTENT DEFINING A ‘SUCCESSFUL LEGAL PRACTITIONER’ . .. PAGE 3 LEGAL REALISM AND THE RULE OF LAW IN AUSTRALIA . PAGE 4 LEGAL ENFORCEMENT OF MORALITY ..... PAGE 5 EQUALITY AND THE LAW .. PAGE7 Corey Gauci L.W350 - Legal Philosophy 1482 - Sydney 2Legal philosophy: The pursuit to becoming a ‘successful legal practitioner’ as a post-graduate practitioner I DEFINING A ‘SUCCESSFUL LEGAL PRACTITIONER’ Since the Watergate scandal in the 1970, which implicated a number of lawyers, there has been an explosion of legal research and scholarship on lawyers’ ethics’. In Gleeson CJ's 1999 speech to the Women Lawyers’ Association of New South Wales titled, ‘The changing paradigm’, he made the following comments concerning the role of a legal practitioner: “Lawyers are given, by statute, a monopoly upon the right to provide, for reward, certain kinds of service fo the public, but there is a question as to what should be scope of that monopoly. Many of the services provided by legal practitioners are also provided by the members of other occupational groups, such as accountants, tax agents, conveyancers, real estate agents, and consultants of various kinds... The exception is the provision of services related to the administration of justice and, in particular, legal representation in civil and criminal court proceedings. That has always been the core activity of the legal profession.” Although it is near impossible to provide a definitive definition of what constitutes a ‘successful legal practitioner’, Gleeson Cu's comments provides a helpful starting. Insofar as considering what constitutes ‘success’, it would seem that the underlying quality of successful practitioners is the administration of justice and, in particular, quality legal representation in civil and criminal court proceedings® 1 Michael Schudson, ‘Notes on Scandal and the Watergate Legacy’ (2004) 47(9) American Behavioural Scientist, 1231-1238 2 Chief Justice Murray Gleeson, ‘The Changing Paradigm’ (speech delivered at the Women Lawyers’ Association of New South Wales, Sydney, 16 October 1999) 3 Chief Justice Murray Gleeson, ‘The Changing Paradigm’ (speech delivered at the Women Lawyers’ Association of New South Wales, Sydney, 16 October 1999) Corey Gauci LW350 ~ Legal Philosophy 1482 - Sydney 3I LEGAL REALISM AND THE RULE OF LAW IN AUSTRALIA Statutory interpretation most commonly refers to the judiciary interpreting and applying legislation’, Sometimes the words of a statute have a plain and straightforward meaning, but more often than not, the judiciary is asked to interpret legislation in light of ambiguity and vagueness’. Although itis the role of the judiciary to interpret the law, it is equally the job of legal practitioners to assist the judiciary in this process®. Accordingly, in carrying out the administration of justice, a legal practitioner must have the ability to interpret the law using abstract and persuasive reasoning and represent their client's needs to the best of their ability’. ‘Two schools of thought in legal jurisprudence that specifically address legal interpretation is legal realism and the rule of law®. Legal realists maintain that the role of the judiciary is inherently subjective, consequently producing inconsistent and sometimes incoherent results based on either the political, social, and moral predilections of the decision maker’. According to Oliver Wendell Holmes, jn, there are three key principles that legal realists typically have in come; indeterminacy, interdisciplinary, and instrumentalism"®. Conversely, the rule of law refers to a legal principle enshrined in Australia’s system of government, which proposes that law should govern a nation, as opposed to arbitrary decisions by individual government officials, primarily referring to the influence and authority of law within society, particularly as a constraint upon behavior" Dennis Charles Pearce, Statutory interpretation in Australia (Butterworths, 7" ed, 1974) 32 * Ibid, ® Ainslie Lamb & John Littich, Lawyers in Australia (University of Wollongong Publishing, 2" ed, 2011) 725 7 ibid. ® Neil MacCormick, ‘Rhetoric and the rule of law: a theory of legal reasoning’ (Oxford University Press, 1% ed, 2005) 3 8 Valerie Kerruish, Jurisprudence as ideology (Routledge Publishing, 1* ed, 2005) 78 © Oliver Wendell Holmes, Jr, ‘The Path of the Law (1897) 10(457) Harvard Law Review, 457- 478 +1 Tina Hunter-Schulz, Rule of law, separation of powers and judicial decision making in Australia: Part 1 (Bond University Publishing, 1* ed, 2005) 12 Corey Gauci LW350 - Legal Philosophy 1482 - Sydney 4This particular interpretation of the rule of law is further supported by A. V. Dicey who defined the rule of law using three key elements: supremacy of law, equality before the law, and people empower the constitution". Legal practitioners owe @ paramount duty firstly to the court and secondly to their clients, An understanding of Legal realism and the rule of law as distinct schools of legal jurisprudence, assists legal practitioners in critically assessing their clients’ claim/rights under Australian law and facilitate the court's job in arriving at a ‘just and equitable’ determination. Whilst legal practitioners unequivocally owe a duty to their clients, they also owe a duty to the profession insofar as contributing to the development of the legal profession. The Australian legal system has become a progressive institution, whether it be the use of social science research in family law matters, or the abolition of repugnant criminal offences, legal practitioners have played a key role in changing the way courts interpret the law and more importantly, how the law effects the lives of citizens", Accordingly, one of the key roles of a legal practitioner, which helps to create a ‘successful legal practitioner’, is the ability to interpret the law, either narrowly or broadly depending on the facts of the case, and assist the courts in the administration of justice for their client, thereby satisfying the legal practitioners duties to the court, the profession and their client. Il, LEGAL ENFORCEMENT OF MORALITY Legal enforcement of morality questions whether the judiciary and executive should have the power to impose obligations on individuals'®. According to John Stuart Mill's ‘harm principle’; the actions of individuals should only be limited to prevent harm to other individuals'®. 17 Andrew Sykes, ‘The ‘Rule of Law’ as an Australian constitutionalist promise’ (2002) (2) ‘Murdoch University Electronic Journal of Law, 4 *3 New South Wales Professional Conduct and Practice Rules (2013) rule 3 4 Don Weatherburn, Law and Order in Australia: Rhetoric and Reality (Federation Press, 1 ed, 2004) v 15 Paul Johnson, ‘The Enforcement of Morality: Law, Policing and Sexuality in New South Wales’ (2010) 43(3) Australian & New Zealand Journal of Criminology, 399-422 15 John Stuart Mill, On Liberty’ (1859) 25 Harvard Classics, 4-9 Corey Gauci LW350 - Legal Philosophy 1482 - Sydney 5The Report of the Wolfenden Committee on Homosexual Offences and Prostitution’? recommended, among other things, "homosexual behavior between consenting adults in private should no longer be criminal offences.” The Report stressed, almost in Mill's language, “the importance which society and the law ought fo give to individual freedom of choice and action in matters of private morality. In the public debate that followed publication of the Report, Lord Devlin, a distinguished jurist, opposed its principles, while Professor H. L. A. Hart, Ronald Dworkin, and Richard Wollheim supported them’®. At the heart of the controversy was the distinction between “public” and “private” and, more broadly, the relationship between the law, liberty, and morality”. It is important to understand that Australia’s legal system legislates all kinds of morality". The laws regarding stealing, killing, defrauding, and misrepresentation all reflect ‘moral’ values”. On the other hand, there is an alternative side to morality and the law, namely, those views that constitute ethical responsibility related to our own personal moral values®. It is the ability to appreciate the distinction between personal and legal moral rules, which assists a ‘successful legal practitioner’ in the administration of justice. ‘An understanding of how morality has the ability to influence legislation assists legal practitioners in achieving a deeper philosophical appreciation for the law, providing that practitioner with a unique perspective on the purpose of legislation and how to characterize a law according to the facts before them. Thus, practitioners are required to place their own ideals within the context of morality and the law, and become constructively critical of their own views and the views of others. 17 The Departmental Committee on Homosexual Offences and Prostitution, Parfiament of Britain, Report of the Commitlee on Homosexual Offences and Prostitutions (1957) David Dyzenhaus, Sophie Reibetanz Moreau, and Arthur Ripstein, Law and Morality: Readings in Legal Philosophy (University of Toronto Press, 1® ed, 2007) 371 8 The Departmental Committee on Homosexual Offences and Prostitution, Parliament of Britain, Report of the Committee on Homosexual Offences and Prostitutions (1957) ® Patrick Devlin, ‘Morals and the criminal law (1962) 71(4) The Yale Law Journal, 662-683 21 Kent Greenawalt, Conflicts of Law and Morality (Oxford University Press, 1% ed, 1989) 207 2 Ibid. ® Ibid. Corey Gauci LW350 - Legal Philosophy 1482 - Sydney 6Vv. EQUALITY AND THE LAW In its prescriptive usage, ‘equality’ is a loaded and ‘highly contested’ concept’, The late-Roman jurists’ definition of justice says it is the willingness to render what is due, as matter of right, to each; and it affirms that as a matter of natural right all human beings are born free”. The implications can be spelled out in the language of equality, as in Thomas Aquinas's formulation: “All human beings are by nature equal®. The concept of equality differs among disciplines and its scope of possible interpretation undoubtedly remains vast’. Whilst no single interpretation can claim to be a categorical truth in the application of the conception of equality, it seems a human rights based approach of ‘treatment as an equal, not equal treatment’ provides a mechanism by which equality can be translated into meaningful and legal instruments. Appreciating the significance of equality from both a legal and social context, provides practitioners with the ability to hear not only what their client is telling them, but more importantly, what their client is not telling them, which is particularly important considering that clients are often unaware of what remedies and options are available to them in their particular circumstances. ‘A solicitor's duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty. Rule 3 of the Solicitors’ Rules® provides that legal practitioners owe a specific and a general duty, to the courts and to the administration of justice, respectively 2 arthur Ripstein, ‘Equality, Responsibility, and the Law (Cambridge University Press, 1* ed, 2001) 10-12 2 John Finns, ‘Equality and Difference’ (2012) 2(1) Solidarity: The Journal of Catholic Social Thought and Secular Ethics, 22-23 28 Aquinas Finn's, Moral, Political and Legal Theory (Oxford University Press, 1998) p170 27 Luke MeNamara, Equality before the law in polyethnic societies: the construction of normative criminal law standards (University of Wollongong Publishing, 1" ed, 2006) 3 28 Caroline A. Forall, ‘The Meaning of Equality: Sexual Harassment, Stalking, and Provocation in Canada, Australia, and the United States’ (2005) 28 Thomas Jefferson Law Review, 151- 166 2 New South Wales Professional Conduct and Practice Rules (Solicitors' Rules) 2013, Rule 3 ® New South Wales Professional Conduct and Practice Rules (Solicitors’ Rules) 2013 CoreyGauci L350 — Legal Philosophy 1482 - Sydney 7The nature of the duty owed to the administration of justice is arguably much broader than the duty owed to the court. The duty owed to the administration of justice calls on a range of skills which legal practitioners are generally taught at law school, such as the ability to advocate effectively and convincingly*". Combining this duty together with a practitioner's skills in advocacy and an understanding of equality and the law, allows a ‘successful legal practitioner’ to utilise their skills and advocate for the promotion and development of equality within Australia's legal system specifically and the wider community generally, thereby positively contributing to the administration of justice. 3! Les A. McCrimmon, ‘Trial advocacy training in law school: an Australian perspective’ (1994) Bond University Press, 8 Corey Gauci LW350 - Legal Philosophy 1482 - Sydney 8Bibliography Books / Reports / Journals Devlin, Patrick, ‘Morals and the criminal law (1962) 71(4) The Yale Law Journal Dyzenhaus, David, Sophie Reibetanz Moreau, and Arthur Ripstein, Law and Morality: Readings in Legal Philosophy (University of Toronto Press, 1% ed, 2007) Finis, Aquinas, Moral, Political and Legal Theory (Oxford University Press, 1998) Finnis, John, ‘Equality and Difference’ (2012) 2(1) Solidarity: The Journal of Catholic Social Thought and Secular Ethics Forell, Caroline A., ‘The Meaning of Equality: Sexual Harassment, Stalking, and Provocation in Canada, Australia, and the United States’ (2005) 28 Thomas Jefferson Law Review Greenawalt, Kent, Conflicts of Law and Morality (Oxford University Press, 1% ed, 1989) Holmes, Oliver Wendell, Jr, ‘The Path of the Law’ (1897) 10(457) Harvard Law Review Johnson, Paul, ‘The Enforcement of Morality: Law, Policing and Sexuality in New South Wales’ (2010) 43(3) Australian & New Zealand Journal of Criminology Corey Gauci LW350 - Legal Philosophy 1482 - SydneyKerruish, Valerie, Jurisprudence as Ideology (Routledge Publishing, 1* ed, 2005) Lamb, Ainslie & John Littrich, Lawyers in Australia (University of Wollongong Publishing, 24 ed, 2011) MacCormick, Neil, ‘Rhetoric and the rule of law: a theory of legal reasoning’ (Oxford University Press, 1* ed, 2005) McCrimmon, Les A., ‘Trial advocacy training in law school: an Australian perspective’ (1994) Bond University Press McNamara, Luke, Equality before the law in polyethnic societies: the construction of normative criminal law standards (University of Wollongong Publishing, 1 ed, 2006) Mill, John Stuart, ‘On Liberty’ (1859) 25 Harvard Classics Pearce, Dennis Charles, Statutory interpretation in Australia (Butterworths, 7" ed, 1974) Ripstein, Arthur, ‘Equality, Responsibility, and the Law (Cambridge University Press, 1% ed, 2001) The Departmental Committee on Homosexual Offences and Prostitution, Parliament of Britain, Report of the Committee on Homosexual Offences and Prostitutions (1957) ‘Schudson, Michael, ‘Notes on Scandal and the Watergate Legacy’ (2004) 47(9) American Behavioural Scientist Corey Gauci LW350 - Legal Philosophy 1482 - Sydney 10Legislation / Regulations / Rules New South Wales Professional Conduct and Practice Rules (Solicitors’ Rules) 2013 Speeches Gleeson, Chief Justice Murray, ‘The Changing Paradigm’ (speech delivered at the Women Lawyers’ Association of New South Wales, Sydney, 16 October 1999) Corey Gauci LW350 - Legal Philosophy 1482 - Sydney 14