Wednesday, July 27, 2011

Criminal Procedure in a Constitutional Democracy

§ 94. The person charged is entitled to have the assistance of a defence counsel of his own choice at every stage of the case. He shall be so informed. The court may allow the person charged to have his defence conducted by more than one counsel.—From Norway’s Criminal Procedure Act of 1981.

At The Faculty Lounge, Bridget Crawford has a post on the lawyer who has agreed to represent Anders Behring Breivik, the Norwegian suspect who apparently has confessed to the bombing in downtown Oslo and the shooting spree that soon followed at the island summer camp, terrorist acts that claimed the lives of 76 individuals. Crawford transcribed a portion of the interview with the defense counsel, Geir Lippestad, part of which follows:

“For several hours he hesitated and discussed with friends and family whether to defend a man who only hours early had massacred 68 young people on a summer holiday island. But in the end his civic instincts trumped his initial horror. ‘I believe that the legal system is very important in a democracy and someone has to do this job,’ he told reporters this afternoon.”

Herewith my comment to her post:

Indeed, and let’s hope people do not draw any inferences about the lawyer based on the charges against his client (as happened in the case of lawyers who did pro bono work for accused terrorists detained at Guantanamo). Contrary to what some prominent legal ethicists believe, I don’t think lawyers should be praised or blamed for exercising their professional discretion with regard to whom they decide to represent. As Brad Wendel has argued, “the lawyer should be seen as endorsing more general political values embodied in the legal system,” and Geir Lippestad’s rationale for agreeing to represent Breivik is evidence of his more-than-verbal appreciation of the value of that endorsement [Crawford views this decision in term of ‘moral mettle.’] All defendants are entitled to due process and unqualifiedly deserving to be treated with dignity. As Joseph Raz explains in Ethics in the Public Domain (1994), “When people are called upon to make substantial sacrifices in the name of one of the fundamental civil and political rights of an individual, this is not because in some matters the interest of the individual or the respect due to the individual prevails over the interest of the collectivity or the majority. It is because by protecting the right of that individual one protects the common good and is thus serving the interest of the majority.”

The “common good” in this instance are the rules of criminal procedure in the legal system of a constitutional democracy which, by definition, is committed to democratic law-making (be it constitutional, statutory, common, administrative or regulatory) and the “rule of law” generally.

Please note: Strictly speaking, Norway is a constitutional monarchy with a parliamentary system of government, while its constitution is correctly characterized as “democratic,” hence the title of the post.


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