Reimagining the Lawyer's Duty to Uphold the Rule of Law

The legal profession has long embraced the view that lawyers have an obligation to uphold the rule of law. Upon close examination, however, it seems clear that lawyers are not expected to do much to promote it. If we take the bar’s pronouncements seriously, we see that, for the most part, so long as lawyers zealously protect and pursue their clients’ interests within the bounds of the law, they are in fact fully discharging their obligation to uphold the rule of law. This Article argues that this conventional view—that mere compliance with formal legality satisfies the lawyer’s duty to uphold the rule of law—is problematic. First, this view makes the duty to uphold the rule of law superfluous, because lawyers are already obligated under the ethical rules not to violate the law. Second, this view assumes—almost as an empirical matter—that compliance with the positive law is sufficient to maintain a society that lives under the rule of law. Yet, a growing body of scholarship on “legalistic autocracies” casts doubts on that assumption. What these legalistic autocracies seem to demonstrate is that it may be possible to observe formal legality without the rule of law. <br><br>This Article offers a wider, alternative account of the lawyer’s rule-of-law obligations that better comports with our strong, albeit vague, intuition that the rule of law demands far more than bare compliance with legal norms and is far more complex than what is conventionally believed. This alternative view is grounded in the realization that “the rule of law” is a teleological notion—in other words, to be understood in terms of its point: we seek the rule of law for purposes; we enjoy it for reasons. Because of the inherent teleological character of the rule of law, no check-the-box criterion, such as compliance with formal legality—will guarantee the valued state of affairs in which law actually rules. This Article argues that the substantive value, or telos, that lies at the heart of the rule of law is the restraint of the arbitrary exercise of power, a concept that comes from the republican intellectual tradition. By taking this substantive value seriously and constructing a thicker, more substantive understanding of the rule of law around this value, we better appreciate the myriad ways in which our society falls short of that ideal, and we can better see why and how the conventional view of the lawyer’s duty to uphold the law, grounded in legalism, falls short of respecting and nurturing the rule of law.<br>