Category Archives: Editor’s Corner

Why Lawyers Matter: History and Lessons – The Editor’s Corner.

By: August Bequai, Esq.*

“…no government can stand which is not founded on justice.” – Aristotle

Evolution of the Legal Profession

The world’s legal systems fall under one of four major categories or a combination of these: civil law, common law, customary law, and religious law (primarily Cannon and Sharia). Of these, civil law is the most widespread globally and is heavily influenced by the Napoleonic Code of 1804. The latter constituted the first major comprehensive codification of Western law since Justinian’s Code in the 6th century A.D. No legal document has had the same influence or impact worldwide as the Napoleonic Code. Components of it can be found in every legal system in the world; including the United States (Louisiana and Puerto Rico, partially).

The common law is the second most widely used legal system in the world. By the 12th century, what has come to be called the English common law had evolved from custom, local usage, judge-made laws, and acts of Parliament. While Wales adopted the English common law, Scotland and Ireland developed their own independent legal systems; heavily influenced by those of Continental Europe. With the rise and expansion of the British Empire, the common law system of governance followed; as did the rules that governed her legal advocates.

However, under the English legal system, unlike that in the United States, Parliament (the legislature) reigns supreme; the judiciary is its subordinate. Well until the rise of the Tudor dynasty, the legal profession in England, like that on the Continent, was largely the monopoly of the clergy. This changed with the Protestant Reformation and the legal and religious reforms of Henry VIII and Elizabeth I. Secular lawyers came to the fore. Their role and power increased with the rise of England’s mercantile class. The English East India Company needed secular lawyers, not clerics, to ferment its power over a growing empire that dwarfed England.

Customary law has been defined as the organic or living law of indigenous people; regulating their daily lives and dealings. The oldest of all legal systems, it is found in numerous localities worldwide. It is regulatory in that it regulates the lives and interactions of members of the local communities that are subject to it.  Under customary law, elders and other well-respected members of the local community are called upon to hear and arbitrate a variety of disputes. These can range from the simple to the serious.

In some communities, customary law is used to resolve such life and death matters as vendettas between clans or offenses which bring shame and dishonor to a tribe, clan, or family.  A number of nations in Africa, Asia, and Latin America have incorporated customary law into their legal systems. Section 211 of the South African Constitution recognizes the customary law and traditional authority practiced by many local communities in that nation.         

Religious law (primarily Cannon and Sharia) is also widely used worldwide. After the fall of the Western Roman Empire in the 5th century A.D., the Catholic Church came to fill the political and legal void it left behind. Borrowing from Rome’s legal system, the Catholic Church developed its own hybrid (Cannon law) legal system.  Much of it was codified; with an army of clerical lawyers and judges trained to administer it. Throughout Europe’s Middle Ages, the law was the domain of the Catholic Church. Its monopoly on learning and reading ensured the dominance of Canon Law well into the Protestant Reformation.

In parts of Africa and Asia, the rise of Islam in the 7th century A.D., brought with it the proliferation of Islamic (Sharia) law. Until then, much of the legal system in place in North Africa, the Middle East and Asia Minor consisted of Roman (Byzantine Empire) and Persian (Sassanid Empire) law. Until the rise of Islam, lawyers in those regions were trained in the legal systems of those two empires.

The first Four Caliphs in Islam and those that followed them-(primarily the Umayyad and Abbasid Caliphates)-established an Islamic judicial system, legal codes, law schools, and cadres of trained lawyers to implement Islamic (Sharia) law. While the Muslim rulers borrowed when needed from the Roman and Persian legal systems, at the heart of Sharia law lays the Koran, and its interpretation over the centuries by Muslim scholars, preachers, and schools. Sharia law is practiced today in one form or another in many parts of the world.

Lawyers Come to the Fore

In Ancient Athens (3,000 to 404 B.C.) and Republican Rome (501 to 47 B.C.), legal advocates were frequently individuals who were self-taught in the customs, practices, and legal systems of their societies. Many of them were public speakers; practicing law as a part-time avocation. While they could not legally charge money for their legal services, a barter system evolved to get around these restrictions. In both Ancient Athens and Republican Rome, unlike in Ancient Egypt (3,000 to 653 B.C.), every citizen was expected to argue his/her own case before the local courts.

The legal profession that we have come to know today had its beginning in 41 A.D. with the ascent of Claudius as Emperor of Rome. Claudius embarked on a series of legal reforms to meet the needs of the expanding Roman Empire (it had topped 100 million persons); also to address the political abuses of his assassinated nephew, Caligula.  

Among his legal reforms, regulations were enacted to provide for the formal schooling, training, and licensing of lawyers. Under Claudius’ legal reforms, lawyers were allowed to charge fees for their legal services, but these were capped. The military was also assigned lawyers to advise commanders in the field on the law of war. While physical brawls (some leading to death) between lawyers had been common in Pre-Claudius Rome, civility within the profession was stressed and enforced under his reforms. He had witnessed firsthand under Caligula’s reign, the anarchy that ensued when lawyers neglected the rule of law and became part of the mob.

By the time that Diocletian became Emperor of Rome in 285 A.D., lawyers had become a common fixture in the Empire. They came from every strata and region of the Empire. To facilitate the running of the vast Roman Empire, Diocletian divided it into two parts in 286 A.D. Administering the Eastern half of the Empire himself, and assigning Maximian to administer the Western half as co-ruler. Rome’s lawyers were called upon to draft the needed documentation to ensure a smooth transition. Roman law and the regulation of lawyers continued as before in both parts of the divided Empire.

With the fall of the Western half of the Roman Empire in the 5th century A.D., the Eastern half, headquartered in Constantinople, assumed the mantle of Rome. It would live on as a successor state for another 1,000 years. Historians came to refer to it in the 16th century as the Byzantine Empire, because of its strong Greek influence. Hence, the term Byzantine Empire has come to reference the Eastern Roman Empire. They are one and the same state.

Lawyers as a class grew in number and influence under the Byzantine state. Legal education became the province of the state, and lawyers were required to study law for four years in state-licensed schools; they also had to join one of the Empire’s court bars; similar to the Inns of Court that were to take shape later in England and pass a written license exam.

The days of the amateur legal advocate were gone. Lawyers had come into their own as professionals and were respected members of society. Civility among lawyers was stressed, and those that failed to comply with the rules of conduct for lawyers were sanctioned or disbarred from practicing law in the Byzantine Empire.

Well into the 15th century, from their ranks came the judges, legislators, governors, and administrators that helped run the Byzantine Empire. Lawyers were also viewed as a stabilizing force in Byzantine society; ensuring that the law and not force, resolved disputes between citizens. When lawyers joined the mob, civil war and anarchy frequently followed. The Byzantine legal model had has a profound (though subtle) impact on the legal systems of Europe, Africa, Latin America, and Asia.

Lawyers in America

During the early colonial period in America, there were no formal requirements for the schooling or licensing of the legal profession. Lawyers were frequently local business persons and farmers, who were self-taught legal advocates. By the time of the American Revolution, lawyers as a class had become leaders in their communities. They accounted for 45 percent of the signers of the Declaration of Independence, and 69 percent of the members of the Constitutional Convention.

By the 18th century, lawyers started to form bar associations and establish law schools. The Litchfield Law School, established in 1789, went on to graduate more than 1,000 lawyers. The Harvard Law School and others followed in the 19th century. U.S. Supreme Court Justice Joseph Story, a Harvard professor, would help establish a national law school curriculum, and one of Harvard’s Deans (Christopher C. Langdell) introduced the case system.

 Many of the first bar associations emerged in New York City in the 19th century; their numbers growing to over 1,000 nationwide by 1930. The formal licensing, schooling and disciplining of lawyers had become the norm by the early 20th century. The profession grew to the point where it now numbers some 1.33 million lawyers; with civility being recognized as an important component of the state bar codes of professional conduct that govern lawyers. It is firmly understood that if lawyers are an important component of governance. That when they are not civil to each other or join the mob, the profession and society as a whole suffer. Dogma does not supplant 2,000 years of law.

Lawyers Act as a Firewall

While Shakespeare fumed at lawyers because they posed a check on the autocracy of his Tudor masters, the legal profession is one of the more long-lasting achievements of human civilization. It has played an indispensable role in guiding humanity through its primal pitfalls. Without lawyers to implement the law, humanity would be engulfed in civil strife and anarchy. History does not lack such examples.

In difficult times, lawyers must stay the course. They bear the burden of ensuring the peaceful functioning of society. Not long ago, I had the occasion to discuss the role of civility in the legal profession with an attorney from the former Yugoslavia. He had witnessed the horrors that followed the breakup of that nation. “Civility,” he said “is the glue that keeps the legal profession intact and makes it effective.” Adding, “When lawyers cast it aside, civil strife ensues.” More than two million citizens of the former Yugoslavia were killed, maimed, or displaced when the rule of law was set aside.

                        

Editor’s Corner (The Liberum Veto: A Lesson for Lawyers)

                                   

Photo by Skitterphoto on Pexels.com

By: Gus Bequai, Esq.*

           Written laws are like spiders’ webs, and with them only entangle and hold… (Anacharsis)

For historians, it is axiomatic that history repeats itself and great civilizations fall largely from within. In the 17th century, Poland was the most powerful and wealthy nation in Central Europe. It was the Poles under King John III Sobieski, who in 1683 defeated the Ottoman Turks at the gates of Vienna; dealing them a military setback from which they never recovered.

Seventeenth century Poland was also one of Europe’s most diverse and cosmopolitan societies. While predominantly Catholic; within her borders also lived Orthodox Christians, Protestants, Jews, Muslims, Budhists, animists, and morer. Living side by side with the Poles, were Cossacks, Lithuanians, Ukranians, Germans, Russians, Latvians, Estonians, Swedes, Mongols, Gypsies, Turks, Bulgars and Roumanians.

Poland was the envy of both her friends and enemies alike. Her Parliament (the “Sejm”), and not England’s, was viewed as the most democratic legislative body in Europe. Yet, by the late 18th century, Poland had become a failed state and was partitioned by her enemies (Russia, Prussia and Austria). She would not regain her national independence again, until the 20th century.

The debate that lingers among historians to this day is, “what caused Poland’s collapse?” and what are the lessons to be learned. While the answers are many; nevertheless, two key factors stand out: the Sejm’s liberum veto (“free vote”) rule; and a political elite that made use of the liberum veto to manipulate Poland’s political process when it suited its interests.

The Liberum Veto

To check the power of her kings, the Polish Sejm enacted a rule called the liberum veto; which gave every member of the Sejm the right to veto any proposed legislation that came before it. Thus, a single member of the Sejm needed only to shout, Sisto activitatem! (Latin: “I stop the activity!”), to derail legislation on its tracks.

No matter how well meaning, by checking royal power, the liberum veto led to serious political abuses; paralyzing the workings of the Sejm. Bribery, extortion and blackmail became the norm; with most members of the Sejm up for sale. In a span of 200 years, the Sejm held 150 sessions; the liberum veto was used to ensure that no legislation was enacted in 50 of those sessions.    

History Can Repeat Itself

Shakespeare’s view of lawyers aside, the legal profession is one of the oldest and most durable in history. Lawyers drafted the first laws and treaties in history; among these, the Code of Hammurabi, Justinian’s Corpus Juris Civilis, Treaty of Kadesh, Magna Carta, Canon and Islamic law and more. Lawyers have been at the forefront of efforts to advance human rights, civil liberties and diversity.

Lawyers have a history to be proud of; without lawyers, civilization would have long since disintegrated into anarchy. They serve as guardians of the law; from their ranks come society’s judges, administrators and legislators. A modern version of the liberum veto, no matter how well intentioned, cannot be dismissed. If enacted, it would erode the political and social edifices on which American democracy rests.  Lawyers need to be vigilant.

*The views expressed in this column are solely those of the author. They are not representative of the Virginia State Bar, it’s Diversity Conference, or Invictus.

The Editor’s Corner (Issue 3 of 2020)

Editor in Chief, Gus Bequai, Esq.

                                                     By: August Bequai, Esq.

                              “Experience never errs, what alone may

                                 err is our judgement” (Leonardo Da Vinci)         

Infectious diseases have plagued humanity since its beginnings. They have killed in the millions, and have caused the collapse of numerous civilizations. The word “quarantine” has its origin in 14th century Venice. Referred to as “guaranta giorni” (40 days), ships arriving in Venice’s were quarantined for 40 days before being allowed to land as a precaution against infectious disease. 

Examples of global devastation unleashed by epidemics abound. One of the earliest documented cases was that of Flu like disease in 1,200 BC; which ravaged Central and Southern Asia, Babylon and Mesopotamia. Many others followed. The Cyprian Plague (250-266 BC) savaged Europe; leaving one million dead in its wake. 

While the Antonine Plague (165-180 AD) killed 5-10 million in the Roman Empire alone, the Justinian Plague (541-542 AD) left 25-100 million dead in Europe and West Asia; and the Black Death (1347-1351 AD) left 75-200 million dead  in Europe, Asia and North Africa.

With the dramatic growth in commerce between Europe and Afro-Asia from the 17th century onward, Europe and the Mediterranean world continued to be revisited by  devastating epidemics.  The Egyptian Plague of 1609 killed more than one million; with the  Plague of Naples in 1656 surpassing it. The Icelandic Plague of 1707-1709 wiped out 36 percent of its population, and the Russian Plague of 1846-1860 left more than one million dead. 

The Spanish Flu killed between 17 million and 200 million worldwide; while smallpox outbreaks  from 1877 to 1977 left 500 million dead worldwide. Some 40 million worldwide have lost their lives to HIV/AIDS  since 1981, and the seasonal flu kills 60,000-80,000 Americans annually.

The engine that drives epidemics is global trade; accompanied by mass migrations from the impoverished rural areas of the globe to its large urban centers. Microbes have been quick to follow. Those who suffer the most are always the poor, disabled and elderly. 

Epidemics  kill not only people, but they also ravage their societies. While global trade has spawned impressive technologies, COVID-19 should serve to remind us that global trade comes at a price. With a multitude of microbes waiting on the sidelines; some potentially more devastating than COVID-19, the challenge for us will be how best to employ global trade without endangering our survival.

Editor’s Corner

                       

                            By: August Bequai, Esq.

                        “To be poor and independent

                              is an impossibility.”

                                              -William Cobbett

While Virginia’s three northern suburbs are the wealthiest in the United States, thousands of its citizenry remain homeless, poor, and destitute. While more than 900,000 Virginians suffer from some form of disability, assistance programs for them; including for those who reside in the state’s three wealthiest suburbs, are, at best, cosmetic.

A 2017 study by the National Center for State Courts (“NCSC”) found that Virginia’s poor and disabled enjoy little or no legal representation in its courts. The NCSC study concluded that a lack of legal representation and poverty, appear to go hand in hand.

The NCSC study also found that the poor and disabled, lacked adequate legal representation in 99 percent of the state’s General District Court cases, and 62 percent of its Circuit Court cases. For a state which prides itself on helping the needy and disabled, the NCSC study speaks ill of its efforts to provide legal services to this segment of our society.

A 2017 study by the Legal Services Corporation (“LSC”) confirmed the same. According to the LSC study, more than 50 percent of the poor and disabled in the country are in dire need of basic legal assistance. The existing nationwide legal aid programs do not suffice to meet those needs. According to the LSC study, legal assistance for the poor and disabled in wealthy Virginia, fares no better.

To help address the dire need for legal services for the poor and disabled in Virginia, the  Virginia Supreme Court’s Access to Justice Commission launched several initiatives to address the justice gap; largely by encouraging Virginia attorneys to commit more time to pro bono work. The Commission’s efforts have also prompted the local courts and bar associations to promote pro bono efforts throughout the state.

While these efforts are commendable, yet they fall short of addressing the many legal needs of Virginia’s poor and disabled in Virginia. While Virginia’s legal profession, well into the 1980s, was viewed as an economic bastion of the community; the overwhelming majority of its young lawyers today are saddled with significant student debts. Compounded by a highly competitive and shrinking legal market. Many in the public who can afford legal services, are turning, in large numbers, to the Internet and non-lawyer professionals for their legal needs.

One young lawyer recently lamented: “How can I do pro bono work, when I gross less than $10,000 annually and I am saddled with an $85,000 student debt?” The son of a friend who was severely disabled in one of America’s foreign wars, said it best: “I gave my country all I had, and now I have to beg George Soros for legal help.”

It is now time for Virginia’s legal edifice to seriously consider a state funded Legal Aid program; comparable to the state’s Medicaid program. The existing legal model to help Virginia’s poor and disabled falls short of the existing need.  Handouts from a dozen billionaires; who fund legal programs that conform to their political whims, is not the proper vehicle for one of the wealthiest states in the country to provide for the basic legal needs of its less fortunate citizenry. A state Legal Aid program would also tap the talents of thousands of young Virginia lawyers, who now face economic difficulties.

A state with the three most affluent counties in America, needs to seriously consider funding legal services for its poor and disabled from its treasury. Pro bono efforts, while commendable, will no more address the legal needs of Virginia’s poor and disabled, than private charity alone can address their medical needs. It is time that we seriously consider a state funded Legal Aid program.

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Gus Bequai, Esq., is the Editor in Chief of Invictus. You may reach him at attyabeq@aol.com.

All opinions expressed here are those of the author and not the Diversity Conference or the Virginia State Bar.

Editor’s Corner – May 27, 2019

By: August Bequai

                                  Howe rapidly the iron age succeeds the age of brass!

                                                -William Erskine, Epigram

The legal profession has been part of the human existence since the dawn of civilization.  The Code of Hammurabi was the construct of lawyers, and Emperor Justinian’s Code stressed the indispensable role that   lawyers play in society. No less today, than in antiquity.

Lawyers, however, have not lacked for cynics and detractors. Oliver Goldsmith observed, “Laws grind the poor, and rich men rule the law”; while Anatole France noted, “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges.”  The Industrial Revolution, with its economic inequalities, did much to reinforce the perception that lawyers are the Praetorian Guard of the rich.

Today, we find ourselves in the midst of a profound social, economic and political transformation of our society. Wrought on us largely by the impact of the IT Revolution; with no end in sight. Privacy is threatened at every turn; while the chasm between the economic elite and the masses has grown astronomically. Confidence in our political institutions has dramatically waned, and hucksters use social media to play our citizenry off against each other.

These are dangerous times for our society, and confidence by the public in our legal system is, more than ever, of paramount importance. It is the firewall that safeguards our freedoms. Writing at the time of the Industrial Revolution, W.S. Gilbert said it best, “The law is the true embodiment, of everything that’s excellent.” Now, more than ever, those words ring true.

With that in mind, our readers should feel free to contact us with any ideas that they may have for an article. The role of Invictus is to serve the VSB community. Please feel free to contact me directly with any ideas that you may have, at: “attyabeq@aol.com”. . Thank you.