We need to talk about lawyers

I am a lawyer by training, I teach law and am also a member of the council of Estonian Association of Lawyers. I am proud of my profession and have contributed my small part in advancing the legal education in Estonia at Tallinn University of Technology (where I also was for a while in charge of curriculum development). I think law can play an important role in preventing harmful developments (like mass-surveillance), but sometimes law and lawyers can also fail the society they should be serving.

The on-going criminal trial of the writer Kaur Kender continues to bring out important issues related to the criminal justice system in Estonia. It appears that the prosecutor and the judge have asked during the trial (which is closed from the public) from at least one witness: “why do people waste their lives crossing boundaries?”. If true, that question is an important revelation about some parts of the law and justice system in Estonia.

In Estonia, the overwhelming majority of practising lawyers have graduated from the University of Tartu. Indeed, there was no other place to study law before Estonia re-gained its independence in 1991 and even after that government higher education policies did not (and do not) support diversification of legal education. This means that prosecutors, judges, and defence attorneys share common thinking that has been shaped by their alma mater. The same professor of criminal law has influenced nearly all lawyers in Estonian (criminal) justice system. This thinking is influenced both by the authoritarian Soviet legacy and by the legalistic and formalistic German legal tradition, which carries the thoughts of legal positivism and which became the bedrock during the transition to democratic government.

The lack of diversity of opinion and the conformist education has meant that many lawyers tend to think very much inside the box. They thus innately refuse to challenge authority: until some years ago it used to be an extremely radical proposition among lawyers to criticise the judgments of the Supreme Court. It seems that many lawyers consider themselves strict followers of the grammatical interpretation of specific rules, rather than seeing the social context and the larger goals of specific legal acts.

This is partly reinforced by the rigid legal system itself, which treats prosecutors not as people capable of independent thinking. Article 6 of the current Code of Criminal Procedure obliges the authorities to “conduct criminal proceedings upon the appearance of facts referring to a criminal offence”, even if they think that this does not make a lot of sense. Prosecutor Merika Nimmo has concluded in her analysis in an article published last year in Juridica, that “forgoing the strict application of the principle of compulsory criminal proceedings would, according to the author, undoubtedly help to design a faster, more effective and human-centred criminal procedure”.

In history, we have seen horrible results when lawyers stop thinking about the larger picture and construe their roles strictly legalistically. In the introduction of a booklet published by the United States Holocaust Memorial Museum, on “Law, Justice and the Holocaust”, historians wrote about the role of lawyers in Germany leading to Hitler’s rise to power:

Coming from a longstanding authoritarian, conservative, and nationalist tradition, judges believed deeply in reinforcing government authority, ensuring public respect for the law, and guaranteeing that state actions had a legal basis (Rechtsstaat). At the same time, they valued judicial independence in the form of protection from arbitrary or punitive removal from the bench and freedom from dictates regarding decision making. Above all, they rendered judgment based on such fundamental Western legal principles as the equality of all citizens, the right of an accused person to a fair trial, and the concept that there could be no crime or penalty without prior law.

In spite of these values, political democracy presented serious challenges to the judiciary. Many judges rejected the legitimacy of the democratic Weimar Republic, since it had come about through revolution, which they considered, by definition, a violation of the law. This attitude had long-term consequences for the republic. Judges routinely imposed harsh verdicts on left-wing defendants, whom they regarded with suspicion as revolutionary agents of various foreign powers, while acting leniently toward right-wing defendants, whose nationalist sentiments typically echoed their own. As a result, in the mid-1920s, supporters of the republic proclaimed a “crisis of trust,” demanding the temporary suspension of judicial independence and the removal of reactionary and antidemocratic judges from the bench. Judges regarded these developments with alarm, rejecting proposals for reform as a perversion of justice. Many were convinced that the criticism leveled upon them, which had come from the political left and from parliament, undermined the authority of the state.

When Hitler came to power, he promised to restore judges’ authority and shield them from criticism even as he curtailed their independence and instituted reeducation programs designed to indoctrinate jurists in the ideological goals of the party. The Nazi leadership used a series of legal mechanisms—which, in contrast to the revolutionary overthrow of power in 1918, judges tended to consider legitimate— to gradually assume and consolidate Hitler’s power. Then, step by step, and always under the guise of safeguarding the state, the Nazi leadership imposed legislation that fulfilled its ideological goals of rearmament, military expansion, and racial purification.

In reality, judges were among those inside Germany who might have effectively challenged Hitler’s authority, the legitimacy of the Nazi regime, and the hundreds of laws that restricted political freedoms, civil rights, and guarantees of property and security. And yet the overwhelming majority did not. Instead, over the 12 years of Nazi rule, during which time judges heard countless cases, most not only upheld the law but interpreted it in broad and far-reaching ways that facilitated, rather than hindered, the Nazis’ ability to carry out their agenda.