Are Lawyers the Devil´s Advocates?

Or, why does a lawyer defend a situation that you might find crazy wrong?

The lawyer has as its expertise to understand and apply laws, regulations, rulings and decisions by the Courts and Authorities. Therefore the lawyer will play a role in many situations, relationships and human interactions. Any time monies are shifting hands, and any time a partnership is initiated, continued or ended, the lawyer may be needed. Even when a child is born, a loving couple moves in together, or a young talent paints a painting, posts content on SoMe or writes a new song. there can be issues or conflicts that will require lawyers. I.e. the law is all around us.

This fact will become particularly clear any time a conflict, big or small, direct or indirect, occurs. Lawyers are often caught in the middle of animated debates stemming e.g. from a scandal, a political decision, financial developments, or even criminal activities. This will, from time to time, raise questions as regards the lawyers´ morals and judgment.

So let’s shine some light on a somewhat sensitive question. One of the fundamental questions discussed during law school. In short, there are two different approaches for the lawyer when working with the legal issues.

De Lege Lata and De Lege Ferenda.

De lege lata – what the law is

The “objective approach” to the law. The lawyer will in these cases act objectively, applying or explaining the currently applicable laws that we are all bound by. When a lawyer takes this de lege lata approach, it does not necessarily mean that the lawyer agrees with the way the law is shaped. It only means that he acts on the basis of what the law is, without him taking any personal stand on whether the regulation and the consequences are good or bad.

De lege ferenda – what the law should be

The “subjective approach” to the law. A lawyer will in such cases discuss or present what he or she deems to be the best (or at least less bad) law and regulation, and consequences of that law. Here, the lawyer will not present what the actual rules are in reality, but will instead make an assessment of how the optimal regulation should be shaped. In these cases the lawyer may apply his or her personal values and experiences. The lawyer can also make de lege ferenda argumentation from what would be best for a particular Client, sector or other stakeholder.

Why does it matter?

Understanding whether a lawyer is looking at the law as it is vs. as it “should” be will hopefully make it easier to discern whether a lawyer is expressing support of a law and its consequences, or whether the lawyer is simply trying to objectively apply the current law (even if the lawyer finds it outright stupid or detrimental).

To protect fundamental human rights, we need the rule of law. We should all be able to trust that the current laws will be applied correctly and in a professional manner. But we also need to have a continuous debate around whether the consequences of the current laws are what we want them to be. Both sides have very important roles to play in a proper democratic society.

,Katarina Strandberg

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