For a more humanistic advocacy

Author: Ignacio Gomá Garcés, Legal Technical Coordinator at the Spanish Parliament

I remember perfectly how, back at university, the character played by Henry Fonda in Twelve Angry Men helped me understand better than any handbook that jury courts were morally dangerous institutions (unless all citizens were exempt from prejudice).

As a result of her doctoral thesis, Teresa Arsuaga, Ph.D. in Law and specialist in mediation (and, coincidentally, my aunt), published a book last fall called El Abogado Humanista  (‘The Humanist Lawyer’). The title alone caught my attention almost instantly, as the ideal from which it drew its basis helped to confirm the intuition that arose when watching the movie: there is a moral vacuum in the practice of law.

Law and ethics

In order to understand this ideal posed by Arsuaga, we must answer the following three questions: what role does law play in our society? What capacity does a lawyer have to change people’s lives? What can humanism contribute in relation to law?

Justice, said Ulpiano, is the art of giving each one his own. In modern democracies, justice is provided according to law—that is, the set of rules that a society imposes on itself in order to live together in peace. Law, as a theory, and justice, as a practice, are two main pillars of social peace in whose virtues the people must trust, because it is from the people from whom they emanate.

Teaching justice would be impossible without the intervention of certain people, namely judges, lawyers, and prosecutors. As such, the way in which these key players intervene in the process of giving each other their dues is hugely significant. Nevertheless, it seems to be the one we have neglected the most.

In general, our legal system, despite its many rules and poor legislative quality, is virtuous. In the same way, our judicial system, despite the lack of means and questioning of its independence as a power of the State, is generally virtuous. In addition, the practice of law (mediated by the aforementioned key players), still presents a lot more room for improvement. It can be said that this is partly due to inadequate incentives, and partly due to the consequences of global dynamics which tend to be more difficult to understand (and, therefore, resolve.)

Anyone who has experienced the legal profession can confirm the distressing predominance of mercantilism present. Of course, a lawyer must eat and so the first thing to do is to seek out clients. But this should not stop the lawyer from becoming aware of his importance and of the need not to trivialise his own task by simply reducing it to ‘making money’. As Michael Sandel says in Justice, every citizen can contribute to improving the ethics of the community if he/she simply reflects on whether it is fair, for example, to always tell the truth, to put a price on everything, or to skip the queue at a restaurant in exchange for a tip. We must approach the legal profession seriously. Judges, lawyers, and prosecutors, with their way of thinking and positioning in the courts, all have the power to change people’s lives: either filling them with joy or creating real trouble for them.

The way in which these professionals approach law and ethics, and their ways of expression and thinking, are a matter of concern for us all, as in our name they provide justice and make impactful decisions on our lives. If morality is, in fact, inseparable from the exercise of law, we must accept that, even though we are unable to perform it in the best way possible, we must propose an ideal, a theory on how to deal with this.

In fact, more than once, we have made the mistake of giving morality up to the wrong intellectuals. Even after the Belle Époque, our unwavering confidence in scientific progress did not prevent the Great War from happening. Furthermore, the separation between morality and law took a chilling turn when legal positivism was placed in the hands of the Nazis.

Nowadays many influential people have raised their voices to warn of this same separation (the most recent book I have read was ‘To Fight Against this Age’ by Rob Rieman) in addition to the existing ones between law and market and between law and technology. These separations pose a threat to the credibility that we blindly grant to scientific and technological progress, at the expense of the moral one.  We can only fight this by turning back to humanism.

Legal ethics: Humanism’s contribution to legal practice

But what can humanism contribute to the practice of law? This is what Arsuaga attempts to answer in her book. To do so, she turns to an American movement called Law and Literature Studies, made known thanks to James Boyd White and Richard Weisberg, among others. Since the seventies, the theory has been used widely throughout universities. Relating back to the Greek classics, the nineteenth-century Dickens, Flaubert or Dostoyevsky, or the implicitly legal texts of Kafka or Camus, this course – actually, a thesis explicitly created to overthrow the prevailing thesis, the economic vision of law – aims to encourage future lawyers to broaden their understanding of the world, engaging them in its immeasurable complexity.

Fortunately for the thesis, its application is also profitable, not only exemplary, for the professional landscape: not all lawyers write, express themselves, or negotiate in the same way. In short, a good lawyer is made better if he/she is a humanist. Since lawyers work with words and deal with texts, ethical dilemmas, and unknown and abstract cases, openness to other ways of thinking and seeing the world becomes an enormously effective tool to possess within this profession.

“There may have been fogs for centuries in London. I dare say there were. But no one saw them, and so we do not know anything about them. They did not exist till art had invented them” – The Decay of Lying, Oscar Wilde

In The Decay of Lying, Oscar Wilde says “life imitates art far more than art imitates life.” For me, Wilde is referring to how our limited and particular vision of the world is insufficient for our understanding of its infinite nuances; we need art and imagination to apprehend reality. Likewise, when law is devoid of a humanist approach, it can be dangerously insufficient as it disregards the human qualities of our society. If in law everything can be discussed, everything must be discussed in the best possible way.

Ignacio Gomá Garcés is Legal Technical Coordinator at the Spanish Parliament (Congreso de los Diputados). He graduated in Law from Universidad Autónoma de Madrid, and holds a Master of Laws (LLM.) from IE Law School (Instituto de Empresa) and a Master’s exchange programme from University of California – Hastings College of the Law. He began his professional career at the international law firm ONTIER. He wrote a book called ¿Qué es realmente Bitcoin? (What is Bitcoin Really?-, Editorial Rasche, 2018), as well as several articles in specialized journals. He is also editor of Hay Derecho, a foundation working against corruption and for the Rule of Law.

Note: The views expressed by the author of this paper are completely personal and do not represent the position of any affiliated institution.