Lawyers: Engineers or Technicians?
This is my last Message as President. I had been wondering what I should write about, as I appear to have covered most topics after more than two years as President. After some thought, I decided I would write something about what essential skills or knowledge makes a good lawyer.
One of the subjects which I always thought a law graduate should have studied is Jurisprudence, especially if the graduate wants to practise. This may seem very much like a contradiction as one may well ask: what has legal philosophy got to do with practice? A lot, I would say. Fairly or unfairly, I have always taken the view that a lawyer who does not understand the economic, political, social or other underpinnings of the law is a mere technician. He is not an engineer. What is the difference?
As we all know, an engineer will calculate how much stress a bridge will take, and will then work out the amount of steel and concrete that will provide the necessary support. And to ensure that his calculations are correct, he will have to factor not only the static weight of the structure, but also the dynamics of the wind and the vehicles travelling on the bridge, amongst other things. He knows that the wind and the moving vehicles will add greater weight and stress to the structure. The technician, on the other hand, will not fully understand the full dynamics of the situation, and will largely work on the calculations given to him by the engineer. In other words, the technician does not have to think through the problems and to understand, except in the simplest sense, what it takes to design and build a bridge.
In the old days, when I was interviewing potential lawyers, I would always hire the applicant who had studied Jurisprudence. But this became increasingly impractical as Jurisprudence became an optional subject and many students did not select that subject because they felt that it was of no use to them in their practice.
So drawing an analogy with the engineering profession, a lawyer schooled in Jurisprudence is a lawyer who understands why a piece of legislation has been passed, or why a Court should decide one way 100 years ago, and why a Court will decide differently today. He will fully appreciate the economic, political and social impact on the law, just as an engineer will appreciate the impact of wind and movement on his bridge. To avoid the need to keep mentioning Jurisprudence – it is a rather long word – I will call a lawyer schooled in Jurisprudence a “learned lawyer”.
The first thing that a learned lawyer understands is that good law is not static, a point that an engineer designing a bridge fully understands. Good law is law that responds to the surroundings, be it legislative or judicial law. For example, our Land Acquisition Act (the “Act”) is a piece of legislation that was an attempt at land and social reform. There is no doubt that the Act has accomplished what it set out to do. Most of us may not look at it this way, partly because we are a small nation, and we did not have a feudal land system. Compare the situation with Pakistan where about 75 per cent of the land is owned by about 25 per cent of the population. Land reform in such a country would be momentous and would be noted globally, especially if it were to be successful. But Singapore’s success has been noted largely as a successful public housing scheme. But it is more than that, if one were to understand the social backdrop to the housing problem at that time. The successful housing scheme has simply transformed an entire country, and now with the MRT, a new pattern of living and commuting has emerged.
A good judiciary will also respond to the changing times, sometimes achieving the wrong result. So during WW2, the House of Lords decided in Liversage and Anderson that certain civil liberties could be curbed because of the war. Lord Atkins wrote the only dissenting judgment, with his ringing words that “Amidst the clash of arms, the law shall not remain silent”. However, some 50 years later, Atkins’ dissenting judgment was accepted as good law, and the majority decision was repudiated.
Similarly, in the United States, the Supreme Court authorised the internment of US citizens of Japanese descent on the legal argument of “rational classification”. It was very much like in the UK, a decision based on fear and bias. Again, some 50 years later, Congress passed legislation to reverse the decisions and to pay compensation to the descendants of the internees.
A technician will likely understand and apply the ratio of these decisions without delving into the circumstances that gave rise to these decisions. So effectively, he will apply blindly these decisions. He is unlikely to analyse these decisions and decide whether these decisions were rightly decided or were morally uplifting or reprehensible. On the other hand, a learned lawyer will look into the background and ask himself if the decisions are at least morally sustainable.
How will these considerations affect a practising lawyer? I think a learned practising lawyer will often ask himself if the legal position he is taking is morally sustainable, or if it is in conformity with the purpose of the law. He will also question if a judicial decision should now be overruled or supported. This is not to say that a learned practising lawyer will not protect his clients’ interests, and simply slot his clients’ interests into what he thinks is the wider interest of a piece of legislation. What I am saying is that a lawyer should never apply blindly a judicial decision or a piece of legislation.
The study of Jurisprudence is also very much tied to the study of Ethics. It is only by a proper understanding of the provenance of a piece of legislation that a lawyer will fully understand the moral bounds of that law. This also means that if the law were oppressive, and intended only to benefit the rich and powerful, he will also know that, and be less likely to support that law. And this is the second important point that a learned lawyer will bear in mind: that good law is always intended to serve the public, and not a selected few.
Perhaps part of the problem is the teaching of Jurisprudence - students shy away from it, as it is taught often as an academic subject, without reference to the circumstances of the political or legal thoughts. For example, if one were made more aware of the long and deadly rivalry between Sparta and Athens, one would better understand the thoughts of Socrates and Plato. And why was Bentham so worried about food shortages?
I know I am simplifying some of my points, and my thesis does look rather weak in some areas, but that is unavoidable in the limited space I am given. I do hope, however, that I have written enough to provoke readers to give some thought to this issue. Ultimately, whatever the reasons or motivations, I do look forward to having more lawyers who think like engineers and not like technicians.
► Wong Meng Meng, Senior Counsel
President
The Law Society of Singapore