THE LAWYER AS CRAFTSMAN

March 22, 2011 4:51 AM

Tradition and resourcefulness

You could hear these statements just about anywhere: “The study of law is a dull study. You have to read a lot of books and especially learn a lot by heart. But luckily it is not a difficult study. It is more or less the easiest study to graduate in.”

Is all this true? It depends and it depends particularly on yourself. For ‘marginalists’ and notorious ‘superficial thinkers’ all this is more or less at a premium. But it is questionable whether these are the people who have the right qualities to practice the craftsmanlike profession of lawyer (attorney; advocate). We talk here purposely of a ‘craftsmanlike’ profession. After all two aspects can be distinguished in this: tradition and resourcefulness.

‘Tradition’ covers that part of advocacy work where the rules, the known exceptions to those rules, precedents and interpretations developed in case law or the science of law must be found. When all is well, this does not happen arbitrarily: a rule is not autonomous but forms part of a system; that system is itself the result of a long development. Examination of that development, the history, is certainly not a pointless activity but is necessary to a proper understanding. Quite often this ‘research’ will lead to surprises, if only because much of what is displayed as current knowledge has been put into words, fully or partly, sometimes literally, sometimes in a different form by legal scholars of the past. It is also traditional that the beginning advocate is even more schooled by his training than during his study because of finding quickly and efficiently what could be relevant to the answer to the legal question with which he is faced. What initially looked like a labyrinth, is unveiled; an apparently invincible fortress could nevertheless perhaps be successfully stormed.

Napoleon thought that his Acts were clear and unambiguous. According to him advocates were superfluous. As we know it did not prevent his downfall. No philosophical essay on language is necessary to make evident that the meaning of words cannot always (and not forever either) be definitive. For an advocate it is not sufficient to be able to read and to be able to find the legal provision which must be applied to the case at hand.

An advocate is expected to have tactical and strategic insight, as well as ingenuity and creativity. He should not only know but also understand. And he should have the courage* to untie himself from dogmas and to look at legal rules with a certain degree of freshness and apart from what he has learnt. This is not always so easy because it is a human characteristic to cling to what is old and familiar. The originality which the advocate has to display is not and certainly not primarily aimed at destroying what is old and familiar but always bringing up for discussion the law and its application in order thereby (also) to contribute in the end to its development. For the advocate ‘the’ law is never a quiet possession.

Karel Frielink
Attorney (Lawyer) / Partner

* Courage in a different sense is in any event shown by the advocate who passed away on 18 April 2010 Allard Voûte (A. Voûte, Recht op eigen wijze [Law in your own way], Amsterdam: Loyens & Loeff 2000, p. 94-95). When he was working one evening in the weekend for a client to prepare a stock exchange raid and his client appeared to have sent an important fax to a fax machine in a site hut instead of to him, he took a crowbar and went to that site hut to break open the door. This was unsuccessful but instead he was picked up by the police and after having obtained the consent from the owner of the site hut the police then went with a locksmith to this hut and succeeded in opening the door. However, this type of personal courage will not always be appreciated in law.

9 March 2011

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