The Utah Supreme Court is going to promulgate a new rule on the practice of law. You may find the Advisory Committee Report here . I have something to say about the substance of the proposed Rule, but today I limit myself to the Committee Report. The Report is genuinely entertaining, at least if you have ever studied philosophy. Here is the task the Committee set for itself:
A careful, axiomatic approach to defining the “practice of law” should start with a
fully understood idea of what constitutes “the law.” Otherwise, one will likely produce a
circular definition that may advance the solution of the problem very little. Similarly,
beginning the definitional process by referring to “legal principles” without defining the
term is just as far from providing a useful definition of the practice of law.
Once it is understood what body of human knowledge and information constitutes
“the law,” defining the “practice of law” will involve the characterization of the actions
and situations that are to be considered the “practice,” without reference to the qualifications
of those who might be engaged in that practice. That is, one of the most important
concepts in approaching the definition in this way is that the definition of the “practice of
law” should be independent of the training, background, titles or qualifications of a
person who might be engaged in the practice. This avoids the unworkable approach of
defining the practice of law as “what lawyers do.”
Once a definition of “the law” and the actions and situations that make up its
“practice” are established, the last element is to decide where lawyers and nonlawyers fit
9In broad terms, the first part of the exercise—to give a formal definition of the “practice of
law”—is a jurisprudential task, while the process of determining what areas of the law nonlawyers
may legally be involved in is largely a public-policy matter.
10The term “lawyer” will be used throughout. There is no intent to distinguish it from
“attorney,” as those terms are usually used interchangeably.
11Laws effected by initiative and referendum would be included as declarations of a
“governmental authority”—namely, the people.
-5-
into the picture and where the dividing line between authorized practice of law and
unauthorized practice should be drawn.
This is quite a collection of odd ideas and mistakes. An axiomtaic approach to defining the practice of law is, well, bizarre. Aside from the fact that what follows is not axiomatic, why would anyone want to attempt an axiomatic definition of something like law? But okay, let's give it a whirl. Where are the definitions and lemmas, the derivations and proofs? Oops. They forgot that part. I've been reading and studying philosophy of law for a few years (about thirty), and I have never seen a serious effort to define law, let alone an axiomatic definition. These guys have bigger ambitions than Hart or Kelsen or, oh, Murphy or Coleman, or, well anyone I've heard of. And this is to promulgate a rule for unauthorized practice.
Law here is defined (or maybe just described, I can't tell) as "knowledge and information." Not practice, knowledge and information. Well, knock me down with a feather. How does one enforce knowledge? Punish violations of information? I guess practice of law is applying special knowledge or information to something - which these guys call 'actions and situations.' Okay, so structurally, one is has knowledge and information which, well, what? The knowledge acts on what? Guides action? In some situation? About some situation?
Alright, sorry, let's start again. We are going to define law, then define the actions and situations which are to constitute the practice of law, and then, I suppose, define persons who are lawyers. This makes no sense even before we get to the substance of the first step. Hello, ever heard the name Holmes? The phrase "brooding omnipresence in the sky" sound familiar?
Read on and one finds out that "law" on this axiomtic account means:
The “law” is the collective body of declarations by governmental authorities that establish a person’s rights, duties, constraints and freedoms and consists primarily of:
(i) constitutional provisions, treaties, statutes, ordinances,
rules, regulations and similarly enacted declarations; and
(ii) decisions, orders and deliberations of adjudicative, legislative
and executive bodies of government that have authority to interpret, prescribe and determine a person’s rights, duties, constraints and freedoms.
Law means collective declarations of governmental authorities . . . wait a second. Who is that? How do you get governmental authorities if you don't already have a pretty clear idea of law? I don't see that George Bush is President unless you have a sense of law - or are they committing to some brute enforcemetn/power theory of government? How is one supposed to know what treaties, statutes, etc. are if you don't know what law is? I mean, the differentiation of pronouncements by governemental officials (even assumng, per impossible, that you can give an account of government that does is not predicated on law) between those that are law and not can't be done here. See that bit - "enacted declarations"? What does that mean?
But wait, there is more! "Deliberations of adjudicative bodies" are also law. It would be a help to know what dictionary is being used. So Judge Cassell (of Justice Scalia or whoever) is sitting in his office thinking and that is somehow law, or is it that the stuff in his mind is law? Legislative records are law? Are the deliberations law when in the Chamber or still law when out hunting ducks? Do I make law whenever an attorney speaks to the court? That is part of the deliberation, isn't it?
There are not many reasons for attempting an axiomatic account, but one thing one does get with an axiomatic account is a very high degree of precision and clarity. It may be hard, but still, it takes great precision and extraordinary clarity to put together an axiomatic account. There are reasons why an axiomatic account of something other than a formal system has not been tried since, say, Spinoza. But here in Zion, a Bar Committee is going to gave it a go. Enough for the day. It does not get any better as it goes along, and there is a limit, even for me, on kicking the incompetent.
The Report is a very odd document. It is also a failure, and a pretty bad bit of "jurisprudential thinking."
Tomorrow a brief bit on why the Utah Supreme Court is defining the practice of law, and a few words ont he proposal itself.
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