The History of Law and the Law Profession

The History of Law and the Law Profession

24-06-2020

In the 16th Century in Greece, I think the earliest people who would qualify to be described as lawyers in Athens, Greece, were probably the orators.

However, these orators hit a brick wall when they wanted to practice law in exchange for payment, i.e., become a professional business wherein we have instruction, action, payment.

You see, their wish, at the time, was never to be; as firstly, there existed the rule that one could not practice on behalf of others, and secondly, they, therefore, were only permitted to plead their own personal cases.

I wonder if that's why their black gowns (which they wore in court) had a pocket at the back so that people could show their financial gratitude by paying into that pocket while it was being worn by the advocate concerned. We'll discover the integrity of this further on in this discussion.

This was soon bypassed by the growing habit of people asking a friend to plead a case on their behalf.

Therefore, way back in and around the 4th Century, Athenians could plead other people's cases but were not allowed to receive money in exchange for such services. This changed some aspects of the way that law was practiced at that time.

Firstly, the Athenians disposed of the perfunctory request for a friend.

Secondly, a serious obstacle that the Athenians never overcame was the rule that no one could take a fee for pleading the cause of another, nor could they plead anyone else's cause. 

They found this to be a bit of a challenge:

When pleading your own case, you received no payment, and when pleading cases on behalf of others, the law now said you could not receive a refund for such action.

However, that particular law was never abolished. It meant that Athenian orators could never present themselves in court as legal professionals or experts. Sadly, they had to keep up the pretense that they were just ordinary citizens selflessly helping out a friend as a favor.

Naturally, money did change hands, but it all had to be arranged in such a cloak and dagger style that you have to ask yourself if it was worth it. I think it had to be considered worth it – just for the laughs alone as it was a gloomy enough life as it was, with people looking over their shoulders to see if they were safe and with all that dark stuff going on, one rarely heard a genuine, spontaneous laugh!

Greece, Athens, in particular, was ever watchful that these laws were upheld that they became such severe obstacles to the Athenian orators, with the professional associations, titles, and all the other pomp and circumstance to hide away, it became too much of a challenge. Unlike their modern counterparts in Rome.

So, if you narrow the definition to those men who could practice the legal profession openly and legally, one must arrive at the only sensible conclusion, which is that the first functioning and legal lawyers would have had to be the initial orators of ancient Rome.

Emperor Claudius abolished the ban on fees and legalized advocacy as an accepted profession, and this allowed the Roman advocates to become the first lawyers who could open a practice.

However, he imposed an earning fee ceiling of 10 000 sesterces – not much money but, that's all they were allowed to earn.

Obviously, there would have been ways around that. Still, you would have been caused to think very carefully about the matter of trust because these were not wealthy times, and your friendly assistant would happily stab you in the back if he thought he would benefit from it – even slightly. Everyone was out for themselves.

So, finally, we have a country that supports the legal profession and ordains payment as a natural progression of practicing law.

However, the Emperor also imposed a compulsory ceiling of coinage, so, next, we need to get some idea of how much that compared to, so we get the feeling of whether it was regarded as high or low.

I turned to Wikipedia for this information:

Let's look at images of the actual coins to have absolute clarity. For example, it was a Roman coin that throughout the Roman Republic, the Sesterce was a small, silver coin, issued only on rare occasions. During the Roman Empire, it was a large brass coin.

Today's price of gold, would have the Sesterce worth at $3.25, by the price of silver, would be worth $2.00, according to general labor rates, one Sesterce = $0.50.

In contrast, prostitute prices would set the PPP value of the Sesterce at somewhere between about $15 and about $50.

How Much is That in Real Money?


Aureus
1 of gold


Denarius
25 of silver


Sesterce
100 of brass [Orichalcum]


As
400 of bronze

remember that in those days, many people traded instead of paying the actual money. So, you might get two baskets of fruit and three mules in payment as opposed to coins – but this would have been an agreed-upon arrangement between the two parties concerned.

So, you see, it's almost impossible to compare the value of different monies in that era, to that of modern times, for many reasons.

Scholars proposed diverging estimates of the monetary stock in Roman imperial times.

When you get down to straight forward comparisons that give you a sense of relativity, it would seem that in the beginning, the early days, the legal profession – such as it was – would not make you a fortune overnight. However, the 'ladies of the night' were getting seriously rich.

The Satires of Juvenal complained about the amount of money granted to those working as Advocates, saying that it wasn't worth the effort to become an advocate.

Just as their Greek contemporaries, the Roman advocates were trained in rhetoric – not law. Further yet, the actual Judged before whom they practiced and argued were also not law instructed.


Long before that, Rome developed a class of specialists who were mainly learned in the law. These people were known as jurisconsults.

Strange to relate, they experimented in law as a hobby for wealthy amateurs.

Hence were the Romans the first to have a group of people whose nature it was to daily study the law, looking for and finding good arguments to deal with legal problems.  So it was, that their law became so exact, and detailed, and technical and precise.

Jurisconsults and advocates were unregulated during the Roman Republic and the Early Roman Empire. This is because the first amateurs and the second were technically illegal – which all changed once Emperor Claudius legalized the legal profession.

The beginning of the Byzantine Empire arrived to see that the legal profession was well established, regulated, and stratified.

It was declared centralized and bureaucratized for the business was, at first, slow to be recognized. Yet, during the reign of Emperor Hadrian, it accelerated. However, the jurisconsults entered a steep decline from favor during this imperial period. So, the one group was welcome with grace and enthusiasm, and the other group fell sharply from favor.

By the fourth century, Fritz Schulz informed us that things had changed so much in the Eastern Empire that Advocates there were now really Lawyers.

Advocates had to be enrolled at the bar of a court to argue before it. Furthermore, they could only be attached to one court as any one time – and there were restrictions (which varied according to the Emperor of the era) on how many advocates could be enrolled at a particular court.

By the 380s, advocates were studies law in addition to rhetoric (thus, the need for a separate class of jurisconsults was unnecessary). Then, in 460, Emperor Leo instructed that new advocates seeking admission must produce testimonials from their teachers.

Eventually, around the 6th century, it was declared mandatory that a regular course of legal study, lasting about four years, was required for entry.

Emperor Claudius's fee ceiling continued right through and into the Byzantine period. Naturally, it was widely evaded either because of demands for maintenance and expenses or a sub-Rosa barter transaction – the latter was cause for disbarment.

In the late Roman Empire, there appeared the Notaries. Just like their modern-day descendants, the Notaries were there merely for drafting wills, conveyancing, and contracts.

They were everywhere in the towns and all the villages. Although Roman Notaries were inferior to advocates and jurisconsults because they were untrained and often just barely literate, since they required payment for each line they wrote, they had a reputation for taking simple transactions and turning them into extremely verbose contracts, so they still claimed a good fee.

That said – maybe they had a few more brain cells than for which they were given credit.                         

The Western Roman Empire went into deep decline, or to stay in the vernacular – it fell. With the onset of the Early Middle Ages… (say, by 1140) Western Europe could not produce a professional lawyer or a professional canonist in anything like the modern sense of the term professional.

Around 1150 there began a small and increasing number of men who became experts in canon law. But this was only in furtherance of their occupational goals, such as serving the Roman Catholic Church a priest.

From about 1190 to 1230, however, there was quite a shift in which some of the men began to practice canon law as a lifelong profession in itself. 

This return of the legal profession was marked by the renewed efforts of the Church and State to regulate it. In 1231 two French Councils mandated that lawyers had to swear an oath of admission before practicing before the Bishops' Courts in their regions, and a similar oath was promulgated by the papal legate in London in 1237.

Interesting to note here that whilst all this was going on in Rome, and France and London, at the same time or, at least, in the same decade, Frederick II the Emperor of the Kingdom of Sicily, imposed a similar oath in his civil courts, so that by 1250, the nucleus of a legal profession had been formed. 

The new trend towards professionalization culminated in a controversial proposal at the Second Council of Lyon in 1275 that all ecclesiastical courts should require an oath of admission.

It wasn't adopted by the Council but, it was highly influential in many European courts. England's Civil Courts also joined the trend towards professionalization. A statute was enacted that prescribed punishment for professional lawyers guilty of deceit.

In 1280 in the City of London, the mayor's court spread the word concerning admission procedures, including the administering of an oath.

Let's pause for a moment to look across the world for an idea as to the shaping of a global legal system.

United States

By around 1700, In the United States of America, the Lawyers had become influential local and colony-wide leaders in the American Colonies. They grew increasingly in power in the colonial eras as experts in the English common law, which was adopted by all the colonies.

By the 21st century, more than one million practitioners in the United States held law degrees, and others served the legal system as justices of the peace, paralegals, marshals, and other aides.

India

Under the British Raj, as expected, most of the leading lawyers came from the top drawer – high caste Brahman families deeply steeped in the traditions of scholarship and service - profiting heavily from the high quantity of lawsuits overland that resulted from these legal changes.

Naturally, non-Brahman landowners resented the privileged position of this Brahman legal elitists.

NB:

British Raj – The British legal system with a major role for courts and lawyers was adopted by the British Raj. This was exemplified by the nationalist leaders Muhammad Ali Jinnah and Mahatma Gandhi.

In 1920 Gandhi suggested an alternative arbitration system, but very few legal professionals accepted his call to boycott the established courts.

Known as the Panchayats, tremendous efforts were brought to establish them as an alternative, institutions, but this experiment failed due to apathy, repressions, and internal opposition.

Because of the diverse gene pool and localism of the Indian legal system, it involves a wide range of legal codes and practices. Therefore, the lawyer may fail in a given district with a technique that was successful in another.

Lawyer organizations are influential at the village level. In response to high illiteracy, legal mediators are needed to translate into standard terms for the uneducated. They act as interpreters between the lawyers and their 'clients'.

These 'interpreters' are as important as lawyers in the workings of Indian justice.

India has over one million lawyers – over 90% were men in 2013. Let's compare this percentage to 66% in the United States in the same year. Yet, in the most elite law firms, women make up about half of these firms, even at senior levels of partnership.

The role of the lawyer varies enormously across different legal jurisdictions.

What's In A Name?

Anyone will tell you that a Lawyer or Attorney is one and the same. They practice law as an advocate, attorney, attorney at law, barrister, barrister at law, the bar at law, a canonite, canon lawyer, civil law notary, counsel, counselor, solicitor. But not as a paralegal or charter executive secretary.

Terminology in Other Countries

Who is recognized as being a lawyer? Many people who, over the years, have always assumed they knew what was what and then discover they were wrong all the time. It's quite the shock and can be embarrassing if those people have been busy putting other people right when they themselves were wrong!

In Australia, the word Lawyer is used for both barristers and solicitors.

In Canada, the word Lawyer is used for people who have been called to the bar – except in Quebec, and they have qualified civil law notaries. Common law lawyers in Canada are formally called barristers and solicitors but not attorneys – ever.

In England and Wales, the lawyer is used for people who can give reserved and unreserved legal activities. It includes practitioners such as barristers, attorneys; solicitors; registered foreign lawyers, etc.

In South Africa, there are advocates and attorneys who can be compared to barristers and solicitors in the UK.

In India, the word Lawyer is used but can be replaced with the word advocate.

In Scotland, the word Lawyer means a legally trained person and includes advocates and solicitors.

In the USA, the term attorneys are those who practice law.

Responsibilities

Those countries in the world that do not have anyone who bears the title of a lawyer are provided legally by other means, and different countries utilize different systems, and that list is extremely long and complicated.

England is generally regarded as the mother of the common law jurisdictions.

Emerging from the Middle Ages and evolving by the 19th century into a single division between barrister and solicitors.

Everyone wants to be in charge! There must always be a leader. Some people are happy 'going with the flow,' and others are only happy when they're leading, being innovating, creative, and making decisions setting up systems – we all have our part to play, and it doesn't mean anyone is better than anyone else.

We just do what we're best at, and as long as we're happy with that, then we'll all be successful.

Leaders start off in the school playgrounds, and later they fight for their girlfriends and possessions, then they fight for their wives and children and later with their bosses. These are fighters, and they want to be the leaders. The men at the top. These guys are also prepared to take on all the responsibilities involved in getting to the top.

So, you can see those specific legal systems emerged quite early in history. Still, actual legal professions of size and importance are reasonably modern. For example, there's not the slightest trace (in early times) of a specific legal profession in the contemporary sense.

The earliest known legal specialist was the judge.

He was only a part-time specialist. The chief, prince, or king of small societies discharge the judicial functions of that area. As their power spread, they delegated some of their duties to their assistants who were not legal professionals – but if you compare that to modern days – neither were the leaders who were delegating.

So far, this history of Law and the Law Profession has told a story of powerful people attached to the various royal courts instructing clerics – who usually belonged to the church but were often used by royalty as the Clerics could read and write fluently – and often in other languages.

Whilst many others – sometimes even those who gave the instructions, the Royals and noblemen were found to be illiterate and barely able to sign their own name; these Clerics were scribes.

Just a quick word here. The Clerics and Scribes were 'let in' on secrets of new rules because they could write and read. This gave them the change to 'borrow' enormous power, - especially as the royalty and noblemen had no idea what they were writing and if it was that which was required – who was there to know?

However, suffice to say that the hub of lawmaking in those days fell between Greece and Rome and also agree that by the time these new legislations had reached further afield, they had also lost some of their meaning.

People did the best they could, but there was resistance to change, to difference, to modernization – the people at large distrusted any that wasn't more of the same.

In those days, almost the whole world was Roman Catholic. As people lived and died by the Roman Catholic Bible, one could say that its supporters in high power had advantages that others did not.

It would do one well in those days to be a devout Roman Catholic supporter. To be seen in the church and to be known for good works and speaking well of the Roman Catholic Church – who indeed had all the power and set the new rules – obviously under the auspices of the current Royalties of the area.

New laws took months to reach distant places in the world – who couldn't care less. The policing of these new rules was sparse as the law enforcers were not orderly, and unfortunately, they were few, and far apart.

In England in, say, 1510, if you wanted to get married you would have to send someone on your behalf – usually, there was a priest whose duty it was to do this – who traveled to the Vatican in Rome on a sailing boat to petition the Pope for permission for such a union. Then the couple had to wait for the Pope's response before they could be married.

You can imagine that waiting for someone to cross the seas to Rome and back again, while also waiting for an audience with the Pope, could take a long time. Therefore, sometimes, people waiting for over a month for the answer to their request.

So that when King Henry VIII wanted to marry for the second time to Anne Boleyn and put aside his first wife, he had to go through 'the proper channels' of course the Pope was infuriated and said NO! so Henry tried again.

This went on – back and forth – for ages, but the Pope held firm and said NO! Henry sent costly presents to the Pope, offered him to visit England, and enjoy the finest of everything.

However, whatever it was that the Pope was offered from England, none of it caught his eye, so he stood his ground and continued to say NO! Henry was still married; he wasn't a very good Catholic. Anne refused to be intimate with Henry until they were married (clever girl), and her tactics won (more or less) in the end.

Many, many years went by whilst Henry still prevailed upon the Pope for a positive answer and the same from Anne.  Eventually, he decided to make things happen – and he did. He banned Roman Catholicism from England and created the Church of England, and its members were known as Protestants, as they were caused to protest Catholicism again, they were Protestants.

That made Henry the most powerful man as he was already the king (and ruler) of England. Now, he was the Head of the Church of England, and that religion was taken as the only religion in England. Even I was Christened as a member of the Church of England. – a Protestant!

Henry demanded that all people that bowed their heads to Roman Catholicism should stop doing that and turn to the Church of England and Protestantism. If not, they would be killed – either burned or beheaded, poisoned, or stabbed and left to exsanguinate (bleed out).

He even had monasteries, abbeys, Churches, and Chapels raised to the ground, and the clerics and scribes therein were tortured until they converted or burned along with the building. In fact, anyone who would not bend the knee to the new Church of England faith was murdered, killed in quite a brutal fashion. They were tortured and not allowed to remain alive.

After more than ten years of waiting, Henry married Anne Boleyn in the Church of England faith, and eventually, they had a daughter (Elizabeth). However, there was a man who became bored quickly and easily. His eyes had fallen on Jane Seymour, and he had become bored with Anne Boleyn, so his intention was to kill Anne and her daughter Elizabeth and marry Jane.

A very important point worth noting is that in those days, women were regarded as having no worth other than being a good wife, bearing healthy children, and being obedient to her husband. So, the fact that Henry waited for Anne for such a long time is indicative of the depth of his feelings for her.

It should also be noted that this was the reason why Anne insisted that it be legally recorded that her daughter was not a bastard and that she would stand to inherit titles, and the throne was Anne to die.

Therefore, with the idea that women were no more than part and parcel of a man's goods and chattels, one should be aware that it was expected to take a very long time before women would ever be regarded as potential candidates in any professional market.

Anne, knew all the foregoing and was intelligent enough to see what was in Henry's mind; and, although she and her baby daughter were locked in the tower for years while Henry paid off many of his Courtiers to speak dreadful untruths about Anne, eventually Anne was sentenced to be beheaded (their marriage had lasted 1000 days – just about 3 years); even after Anne was dead, she had been intelligent enough during the earlier years of her marriage, to provide for her daughter Elizabeth I to be lawfully declared her successor (so she turned to the law for help) with a right to inherit the throne – which she later did and ruled England well for a great many years.

I personally think we're seeing something of that nature now as Prince Harry has broken specific royal rules and married Meghan Markle. They, as a royal couple, have now stepped down from any heavy royal engagements.

So, here's another male member of the Royals – also of red hair – who has been pushed to the point of self-punishment for daring to love 'an outsider'!

Returning to History of Law and the Law Profession, you can now see that even though Rules were made and legislation was passed, it took a very long time to spread out across the region concerned and become 'set in stone.'

It had many hurdles blocking it, and often the law was reduced to the loudest voice. However, as time passed, the clerics and scribes became attorneys and lawyers; and although they still don't quite make all the laws of the land – they do make the common laws, and that's an extremely long way to have advanced.

While the actual Laws were created in coordination with the Royals, the Noblemen, and Members of Parliament, they still had to be policed. In those days, the Police didn't actually exist as they are now. We had Sheriffs – as did America and a few other countries.

So it was, that when a new law was created, riders went out to the other various castles through the land proclaiming the new law. Those Castles had Sheriffs who would ride out and do the same.

There were many Sheriffs, and in that way, the information was taken throughout the land over a few days. In these modern days, it only takes a few seconds to advise globally any new facts.

Around the 17th century, the English Attorneys and Solicitors were expelled from the *Inns of Court in London, and the division between advocates and attorneys became rigid.

It was also not until the 18th century that the Barristers accepted a rule that they would function only upon being engaged by an Attorney – not upon being retained directly by a client.

Other types of legal agents also developed in London, but, in the 19th century, all of the non-barristers were brought under the one name – solicitor. After that, there were only Barristers of whom the most senior could be made Queen's or King's Counsel.

*The Inns of Court where were the native 'common law' was developed by specialized legal society – Inns of Court, in London. There, through lectures and apprenticeship, men acquired admission to practice before the royal courts. Various agents for litigation resembling procurators also became known.

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