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The chief justice of Pakistan has been placed under house arrest. Lawyers are clashing with police in the streets of Karachi. And the American legal profession is silent. Where are American lawyers and why are they not speaking up in support of the independence of the legal profession and the rule of law in Pakistan? The silence of the bar is troubling. American lawyers have a duty to defend their Pakistani colleagues. Failure to live up to this duty might have undesirable consequences on the future of the legal profession in Pakistan and the legal profession and the rule of law back home. The American Bar Association Model Rules of Professional Conduct state that American lawyers are public citizens, “having special responsibility for the quality of justice.” It is a well-accepted feature of professionalism that as public citizens, lawyers have a duty to protect the rule of law, enhance the quality of justice and defend the independence of the judiciary and the profession. The duty applies abroad This duty applies not only here but abroad. Thomas Paine opined that “in America law is king,” and Alexis de Tocqueville observed more than a century ago that lawyers are America’s aristocrats. Since then, law, lawyers and the rule of law have been established as cornerstones of our democracy. And in recent decades the American legal profession has been engaged in an effort to export our perception of the role of law and our version of the rule of law all over the world as a fundamental facet of a vital democracy. The legitimacy and moral force of the rule of law, here and abroad, is compromised when American lawyers betray their professional duty to act as public citizens when the independence of the profession is attacked here and in Pakistan. Here, inaction compromises public trust in, and respect for, the legal profession. Americans might look down on lawyers, and the prestige of the profession might erode, when lawyers fail to act in ways that deserve to be called professional. Moreover, failure to take a position in support of the independence of the judiciary in Pakistan might legitimize unreasonable attacks on the independence of the judiciary back home, even if such attacks are not violent. Overseas, the silence of the American Bar enables the government of Pakistan to place under house arrest not only its chief justice but also a piece of our rule of law and our credible ability to export it all over the world. Inaction suggests that American lawyers claim to believe in an obligation that they do not seem to fulfill. In an “American Legal Profession” class I teach at Tsinghua Law School in Beijing, China, I lecture the students about the rule of law, the imperative importance of an independent judiciary and the significance of an independent legal profession. In class the other day we discussed the recent events in Pakistan. The Chinese students seemed sympathetic to the inaction by the American bar. And yet there is a significant difference between American and Chinese lawyers, even if members of both professions react passively to the events in Pakistan. Failure to take a stand is more understandable when it comes to the emerging legal profession in China, one that is still forming its identity and fighting to establish its independence. It is also acceptable given the Chinese culture of confrontation-avoidance and general reluctance to lecture to others about how they should act. The American legal profession, however, subscribes to a very different morality and professional ideology. Thus its silence is not understandable. The American bar is a secure and powerful profession, with well-developed adversarial ideology and an explicit agenda of spreading its version of the rule of law worldwide. In that regard, the sympathy of my Chinese students to the silence of the American profession is quite disturbing. It suggests that my Tsinghua students do not believe the professional ideology and duties preached by American lawyers. Had they bought into the American accounts of the rule of law and the independence of the judiciary, Chinese lawyers would have been no doubt surprised by the failure of American lawyers to defend it. Their sympathy to inaction might mean either that they do not find American professional ideology credible, or worse, that they do not believe American lawyers believe it either. In any event, our failure to denounce attacks on the judiciary and the rule of law overseas compromises our ability to preach the importance of it to others. Where are the lawyers? The need for American lawyers to speak up is highlighted by the silence of the White House and its failure to denounce the actions of the Pakistani government. At least the White House might have plausible political reasons to abstain from criticizing an ally in its global war on terror. Yet what constitutes a possible justification for inaction by politicians does not excuse lawyers’ passivity. Rather, exactly because the attacks on the judiciary and legal profession in Pakistan are violent, because lawyers can rather easily inform themselves and acquire the necessary expertise to voice an opinion, because they have a professional duty to act and because others are not likely to, American lawyers must support the rule of law and denounce its abuse in Pakistan. Eli Wald is professor of law at the University of Denver Sturm College of Law. He is currently visiting at Tsinghua Law School in Beijing, China.

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