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A Modest Proposal
A Modest Proposal:
Separation of Lawyers and Politics
The first thing we do, let's kill all the lawyers.
William Shakespeare, Henry VI, Part II
When someone passes the Bar exam and is admitted to the Bar to practice law in a Province they become an Officer of the Court. This makes them part of the Judicial branch of government.
If they then run for public office and are elected to the legislature or to an executive office, it means that they simultaneously serve in two branches of government. This violates the principle of the Separation of Powers.
The effect of this, at least with respect to lawyer legislators, is also an obvious Conflict of Interest.
Certain people write laws as legislators and then find that in private life their services are needed to negotiate the same laws for the public.
James Madison wrote in Federalist #62
It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood;
if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?
There is no doubt that today the laws are so voluminous that they cannot be read and so incoherent (or obscure) that they cannot be understood. But it is precisely in the interest of lawyer legislators that this be the case.
It becomes their livelihood to read, explain, and manipulate the laws for the sake of their paying clients.
Indeed, since lawyers will be hired by both sides of a legal dispute, it is in their interest that the laws be positively self-contradictory, for they will then be able to make just as good a case, and stand just as good a chance of winning, whichever side hires them.
Lawyers have seen to it that only persons admitted to the Bar can be hired to practice law.
I would say that either lawyers surrender their legal monopoly of the practice of law, or they pay the cost of that monopoly with a legal disability to run for office.
I would be willing to endure the hazard of violating the Separation of Powers or of a Conflict of Interest if indeed the principal of voluntary association be generalized against the monopoly of the lawyers
The remedy for this clear Conflict of Interest and breach of the Separation of Powers is obvious.
Members of the Bar should be ineligible for elective office, with the only exception being offices specifically for attorneys (e.g. District Attorney or a State Attorney General).
Resigning from the Bar after election, or after several elections, could still remove all, or part, of the disability for lawyers, though it would still be a wise provision that lawyers could not participate in cases involving laws that they themselves were instrumental in passing.
Brings the issue of separation of the bar and the legislation. No move can be made without looking at a lawyers strength in the face the practice could be referred to as incestuous.
, as outlined in his complaint to the Canadian Judicial Council ("CJC")
, how the incestious relationship between the bar and the bench has affected his own case.
Chris Budgell's Complaint to the CJC