Monday, January 30, 2017

Lawyers Acted as the 'Fifth Estate' Last Weekend

     As I wrote in my recent PHD, at their best lawyers act as the 'fifth estate' to represent people & help them to advance & defend their rights.1  Many lawyers played this role on front lines, in airports and courtrooms, across the US over the weekend, see The Lawyers Showed Up.   However, there were continued reports that at least some government officials refused to comply with court orders that limited President Trump's recent Executive Order, see here

     In a federal democracy, the judicial branch's authority is 'persuasive' in the sense that courts depend on the other branches of government to respect and ultimately to enforce their rulings.2  Where the executive and legislative branches do not respect rule of law, then the democratic function of the federal system is at risk. 

      Some have contemplated the chance that the political situation south of the border will end in calamity - impeachment, war or economic disaster, see here, but that American democracy and institutions will survive. More disconcerting though, now it seems some are openly & seriously considering the possibility that the failure to respect court rulings on the weekend was the first step in a challenge to democratic constitutionalism itself, see this widely shared comment on social media, Trial Balloon For a Coup.

     An independent Bar is vital to rule of law & democracy. Fact is, though they may be on the front lines today, legal challenges by lawyers alone may not be enough.  I still hope the most dire of the speculation about American politics is wrong or exaggerated.  But, like many, I will be watching events closely as they unfold in the coming days and weeks.

      On a less sombre note and more hopeful note, very proud of the role of the legal profession in this so far though. Never thought I would see large crowds chanting 'thank you lawyers!', see description in this article.  Whatever ends up happening in the USA, good to see thousands of American lawyers seeking to protect the legal rights of so many!

1.  In Canada, the idea of lawyers as a '5th estate' is from Peter Russell's work, The Judiciary in Canada (Toronto: McGraw-Hill Ryerson, 1987) at p 38.
2.  This legal understanding flows from the courts ruling in Marbury v Madison, see commentary and case, here.

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