Written by: Denise Roy
I have a confession, and I’m more than a little nervous about making it, but here goes. I am passionate about democracy. Though often disheartened by the reality of democracy—in the name of which we have Prop 8 and the Tea Party—I remain enthralled with and buoyed by the idea and promise of democracy, convinced of its necessity in moving toward peace and justice. In my SALT blog posts this month, I will attempt to explain my faith in democracy as an instrument of justice despite all apparent evidence to the contrary.
Now, what you and I understand when we think of “democracy” may well be quite different. Though it might clarify to provide my working definition of democracy, I’m going to hold off until a later post to talk about the nature of democracy in more depth. For now, suffice it to say that I am not talking about a passion for U.S. democracy or majority rule or any other particular version of “democracy” that exists in the real world or that serves as shorthand for a very complex, contextual and “essentially contested” concept. Nor am I limiting my use of “democracy” to the governmental sphere. Democracy’s relevance has much wider scope, extending beyond government to communities, organizations and even intimate relationships. Says Walt Whitman:
Did you, too, O friend, suppose democracy was only for elections, for politics, and for a party name? I say democracy is only of use there that it may pass on and come to its flower and fruit in manners, in the highest forms of interaction between [people], and their beliefs — in religion, literature, colleges and schools — democracy in all public and private life….
In my work as a law teacher, I am interested in the role lawyers should (and do) take in promoting democracy. As one way of exploring the normative question in the U.S. context, I have pondered whether U.S. lawyers’ professional obligation to promote justice entails an obligation to promote democracy.
Responsibility for promoting justice is a canon of our profession. At the very end of William Mitchell College of Law graduation ceremonies, our dean (currently Eric Janus, former SALT board member and Equalizer editor) charges the graduates to “go forth and do justice.” He doesn’t explain or elaborate. No one boos, frowns in confusion or stops to wonder what he means. The public and profession alike take for granted that a lawyer is a “public citizen having special responsibility for the quality of justice,” to quote the ABA Model Rules of Professional Conduct preamble. Whether we do, or the public believes that we do, a good job fulfilling (or even take seriously) that responsibility is another question altogether.
Unlike justice, we do not seem to hold responsibility for promoting democracy as a professional canon. Sure, we often pay lip service to the value of democracy and tout our role in it. “The profession of law is fundamental to the flourishing of American democracy,” says the Carnegie Report on legal education. Yet it is easy, when push comes to shove, to see democracy (“the people”) as opposed to justice (“the good”), and to see ourselves as champions of the good against the tyranny of the people. (Again, Prop 8 and the legal challenge it provoked come to mind.) We are not wrong about that, by the way. Justice, and lawyers’ work promoting justice, does and must serve as a counterweight to the excesses of democracy. Still, the numerous shortcomings of democracy on the ground seem to me as likely to be symptoms of inadequate democracy as evidence that “[j]ustice, alas, may not be the friend of … democracy,” in the words of Owen Fiss.
In my seminar about the role of lawyers in democracy, I ask students to consider two questions: (1) Does justice require democracy? (2) Does democracy tend to promote justice? They easily and almost universally answer “no” to the first question, finding it plausible, in theory, to imagine a dictator who rules “justly” from their individual perspectives. Only when they widen their view to include other perspectives in a society often fragmented over the questions of justice do they realize that no “just” dictator can get it “right” from all perspectives, that no “just” dictator can impose his particular version of justice on those who disagree without a certain amount of aggression if not outright violence.
If governments (and communities and organizations and families) must make choices about which vision of justice will prevail in particular circumstances, if we must negotiate in the face of uncertainty and disagreement about justice, then promoting democracy must be understood as central to the work of promoting justice and essential to promoting justice peacefully. In the words of political scientist Ian Shapiro, “[A] suitably developed account of democracy offers the most attractive political basis for ordering social relations justly. … [A]lthough democracy is not sufficient for social justice, usually it is necessary ….”
I join John Dewey, Lani Guinier and others in the belief that “[t]he cure for the ailments of democracy is more democracy.” More specifically, the cure for the injustices of democracy is more—better—democracy. From this belief it is a short step to the position that lawyers’ responsibility for justice entails responsibility for working toward more—better—democracy. This responsibility has implications not only for lawyers’ professional project, but also for what we choose to teach our students and for how we work with clients.