Brian Tamanaha on Self-Interest in the Legal Community vs. the Rule of Law
Introduction
A legal community is an exclusive group of people with their own rules. Lawyers used to be privileged and managed to create a structure prioritizing internal interests. Tamanaha underlines that “the entire professionalism agenda, some have argued, has a dark self-interested underside, operating primarily to enhance the status and income of lawyers, elite lawyers in particular”. The modern legal community is part of the market, which sells its services as a commodity. Therefore, the concern that it can be excessively self-interested and only prioritize client interests is correct.
Adversarial Systems and the Focus on Profit
Lawyers get money for their services and protect the interests of their clients in court independent of the case circumstances. Agmon argues that modern adversarial legal systems are based on the principles of a free market. Ideally, such a system should protect individual rights and deliver just results. However, with the development of adversarial legal systems, the area became highly professionalized and complex. People can only make their case in court with formal legal representation. Lawyers, in turn, aim only to win the case for their client without focusing on justice. Therefore, professional legal representation became a prerequisite, and the case outcome depends on a lawyer’s skills and price.
Members of the legal community do not consider public interests in their activities. They are paid to win the case, no matter the circumstances. This condition prevents people from getting equal access to the justice system. People can only enter the system with professional legal representation. Those willing to navigate it themselves need legal assistance, leading to their failure in court.
Conclusion
Therefore, the legal community nowadays is based on self-interests, as lawyers do not provide equal legal aid. Additionally, they do not seek justice, focusing solely on the case outcome, which is favorable for their client. The modern legal community is built on market relationships that make it impossible to distribute equal access to justice as part of adversarial legal systems.
Reference List
Agmon, S., ‘Undercutting Justice – Why Legal Representation Should not be Allocated by the Market’, Politics, Philosophy & Economics, vol. 20, no. 1, 2020, pp. 100-123.
Higgins, A., ‘What Price Are We Willing to Pay for the Dream of Equal Justice?’, Oxford Journal of Legal Studies, vol. 42, no. 1, 2022, p. 325-344.
Tamanaha, B., Law as a Means to an End: Threat to the Rule of Law, Cambridge University Press, 2006.