THE ADVOCATE V O L . 7 5 P A R T 5 S E P T E M B E R 2 0 1 7 705
Our future relevance as lawyers will depend on our willingness to take
up the challenge articulated above. We need to re-engage with the deep
socio-political ethical questions that lie at the heart of law. We cannot sit
back as technical experts for an ever-narrowing cadre of super-wealthy
clients. If we do sit back, we will abdicate our social, moral and political
legitimacy as a professional class.
The range of topics that require debate is extensive. I focus here only on
two values: transparency and access.
The great legal philosophy debates of the 20th century focused on the distinction
between law as authority and law as legitimacy. Positivists like
H.L.A. Hart saw authority as the philosophical content of law.24 Law derived
its power through its promulgation by authority and its status as authoritative
rule making. This aligns well with many conservative political views—
it is the authority that makes law, and law must be obeyed because it is
authority.25 Positivism has a strange relationship with pluralism. In a society
of competing and sometimes incompatible values, decisions as to how
issues involving competing values are to be resolved are made by those
legally authorized to apply the law, the validity of their power being derived
entirely from positive authority rather than moral superiority.
In contrast is the Dworkinian school of thought that sees law as legitimacy.
26 This approach grounds often-used liberal phrases such as the
“moral arc of the universe”.27 Law has validity because it is a legitimate
expression of moral reasoning. While individual legal decisions may be
closer to or farther from what reasoned morality requires, the trend line in
law is toward closer adherence to reasoned morality. Law as such is thus
legitimacy rather than pure authority. Decisions in hard cases are not made
on the basis of pure authority but because moral reasoning demands a particular
When legal services are delivered by technological portals enabled by AI
and legal solutions algorithms are proprietary, which version of law will
prevail? It is easy enough to embed prescriptive codes of ethics into the
parameters of such algorithms, but what of normative principles of transparency?
When legal thinking is increasingly hidden within inaccessible
algorithms that drive seamless service delivery, is it sufficient to rely on the
service provider to disclose the mechanisms by which decisions are being
made? Or is it preferable to engage a human legal professional bound by
rules and standards derived from normative ethical principles to work
alongside the technology? For example, could lawyers become independent
professionals who act as vetting mechanisms for technological service