Journal of the Institute for the Study of Legal Ethics
In our constitutional democracy, law, lawyers, and legal services all play special yet interconnected roles. In this constitutional democracy there are three institutions to which we turn to resolve conflicts and to establish rights, privileges and remedies. The traditional way, of course, views the courts, the executive and the Congress as in checks and balances. A more accurate perspective would lead to describing these entities as functioning in an interrelated, dialectical relationship. This dynamic relationship furnishes one reason why lawyers and legal services lawyers, in particular, are so important for us in our constitutional system.
Administrative agencies, as a component of the executive branch, necessarily look to the courts for guidance, for correction, for broad interpretation, for leadership, and for constitutional concerns. They are also supposed to implement laws passed by Congress. The courts look and defer to administrative agencies for their expertise. Courts expect them to do interstitial interpretation of the law's text and to implement the laws by promulgation and enforcement of regulations. Congress, in turn, expects the administrative agencies to provide the meat and bones to the laws enacted. They expect and sometimes anticipate the courts to set limits to the law's application, and they sometimes expect and anticipate challenges in the courts that will affect the actual application of the law. Therefore, you have in many cases a dialectic between these various agencies creating what we hope will be the appropriate applied living law.
Of particular importance and interest to lawyers is the Marshall decision in Marbury v. Madison, which established a long time ago that the final adjudication of constitutionality would be done by the Supreme Court and courts under its guidance. This decision has made our type of dialectical, institutional, and constitutional democracy very dependent on litigation since the final adjudication is by the courts concerning the impact of our society's foundation document. We depend more than practically any other society on our courts to establish for us what the Constitution means and what effects it has on law and governmental actions. One consequence is that lawyers are required to make the whole system work by advocating in these areas, by working through governmental departments, and by serving in all these arenas in which the laws are brought to life.
As a result, legal services come into play in many ways. Let me just focus upon three. Why is it so crucial in a democratic society to have lawyers provide for the poor so that they, too, can be participants in our democratic system and can resolve their disputes as others do? Why should they receive recognition of their claims and needs? Finally, how can they make some progress in these institutions which are designed for all people who live in this constitutional democracy?
Weiss, Jonathan A.
"Should the Government Fund Legal Services - If So, What Should the Lawyers Do,"
Journal of the Institute for the Study of Legal Ethics: Vol. 2
, Article 30.
Available at: https://scholarlycommons.law.hofstra.edu/jisle/vol2/iss1/30