STATUS AS A KEY TO THE CULTURE OF IUS COMMUNE: with OUT STATUS, THERE IS NO PERSON

The legal culture of ius commune – medieval Roman law developed into a system of rules that formed a universal common law for Western Europe – built and deployed its categories and discourses on the reading and re-reading of various passages of the Corpus Iuris Civilis, which included the Digest, the Code and the Institutions. Jurists from the 12th century onwards found in the Corpus that the words “status”, “persona”, and “homo” were used in very varied contexts, especially in Title I of the Digest and two titles of the Institutions .

In Title I of Book I of the Digest and the first of the Institutions, specific passages from the Institutions of Gaius were, to a greater or lesser extent, reproduced; these may be regarded as a decisive point of reference for the construction of a discipline of the person, before codifications in law were developed. A triple division of personal law – de jure personarum – resulted from these texts, i.e., the summa divisio: liberi aut servi, followed by a second division, sui iuris or alieni iuris, and finally quae in tutela, quae in curatela or ceteras personas, quae neutro iure tenentur. In the culture of ius commune, these passages were read, in general, with a tendency to highlight the divisions they consecrated between the people, rather than a division of the law of the people. This interpretation consolidated a central idea in that culture: the “division” of people so that a perspective was imposed that highlighted plurality.

The second title of the Institutions refers to the capitis deminutio, conceived as prioris status commutatio, a change that could happen in three different ways – tribus modis accidit. These ways enabled jurists to establish, from very early on, the basic idea according to which there were three statuses of persons: civitatis, libertatis, familiae. This was not a trilogy typical of Roman jurisprudence, but it was articulated by ius commune jurists, and enjoyed singular fortune; so much so that the exposition of the right of persons conformed to this trilogy.

The concept of will plays a role in CRPD Article 12 in two different ways: one explicit and one implicit. The concept makes its explicit appearance in the provisions of Article 12 that address the need for safeguards. Specifically, CPRD Article 12(4) requires states parties to ensure that “measures relating to the exercise of legal capacity respect the rights, will and preferences of the person” (emphasis added). But already in this formulation we can detect the second, implicit reliance on the concept of the will. For this call to respect the will of persons with disabilities pertains specifically to measures concerning the exercise of legal capacity. As we shall find in detail below, the very idea of legal capacity itself implicates the concept of the will, as well as a broader legal doctrine of the will and practices of ascription and attestation in which that concept is embedded. In contemplating the next steps in the ongoing struggle for disability rights (and in understanding some recent setbacks in that struggle), we therefore need to come to terms with the concept of the will – not least because the legal doctrine of the will has long functioned to exclude persons with disabilities from full participation in society and full enjoyment of their rights.

My plan is as follows. I begin in Section 1 with some ancient history, examining one of the oldest recorded law reforms in Europe, together with an episode from the history of its interpretation in early modern times. In these episodes from the history of law reform we can trace the social and legal architecture of an ancient regime of legal capacity in which the concept of the will came to occupy a crucial place. I then turn in Section 2 to contemporary law in Europe and Latin America, analysing modern civil codes in order to show that and how the concept of will plays a role as a legally primitive notion. In Section 3, I consider ways in which the legal doctrine of the will structures and constrains practices of will-ascription, will-attestation and will-nullification in ways that exclude persons with significant cognitive and psychosocial disabilities from full enjoyment of legal capacity.

INTRODUCTION

All advocates for change have to battle with dilemmas on the pace and process of the change that is being demanded. Should it be gradual or radical? Is it acceptable to make concessions and carry everyone along or should an inflexible stance be adopted as every concession would only prolong the rule of the old and provide the semblance of change only? Robert Caro in his biography on Robert Moses has a telling paragraph documenting the impatience of a leading politician with idealism and the idealist's inability to compromise. Such people, the politician bemoans, “were willing to devote their lives to fighting for principle and wanted to make that fight with out compromise or surrender of any part of the ideals with which they had started it”, even if the unwillingness to compromise causes real losses to those for whose mission they battle. The paragraph made me wonder, can idealists only be categorised as inflexible impediments? Also, if change is being visualised, is it enough only to agonise on the substance of the change, or is it also important to reflect on how the change should be executed?

Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (hereinafter CRPD) has often been referred to as effecting a paradigm shiftin the legal understanding of legal capacity by recognising that all persons with disabilities possessed it and the accessing of support to exercise legal capacity in no way negated the existence of capacity. I have elsewhere recounted the ebb and flow accompanying the adoption of this article in the United Nations. Since India follows the dualist system of international law, the Convention becomes part of Indian law only after the enactment of domestic legislation. This chapter will analyse: the seven year-long process of inducting Article 12 into Indian law; the tension between the demands made by various stakeholders at different points in time and the final text adopted by the legislature.

INTRODUCTION

The majority of African countries have signed and ratified the CRPD and its Optional Protocol indicating a willingness to be bound by its norms and standards. Of the 54 African countries, 48 have ratified the CRPD and 49 have ratified the Optional Protocol to the CRPD. Article 12, which is regarded as “emblematic of the paradigm shiftof the Convention”, requires States Parties to “recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.” Notably, the CRPD recognises “universal” legal capacity for all persons with disabilities, regardless of severity and requires States Parties to “take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.” The African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa (the “African Disability Protocol”) also requires the recognition of legal capacity and the provision of support to exercise legal capacity.

In spite of having ratified the CRPD, many governments, including African governments, remain opposed to the idea of “universal” legal capacity for all persons with disabilities. Nonetheless, there have been sporadic legal capacity reform efforts aimed at closing this chasm by aligning domestic legislation with the CRPD. Kenya, Zambia and Southhave all taken steps to reform domestic law on legal capacity with varying levels of success. Reform efforts in these countries have taken place through the courts and through the legislature.

After ratifying the CRPD on 5 May 2008, Kenya has two bills currently before Parliament, namely the Persons with Disabilities (Amendment) Bill 2015 and the Mental health (Amendment) Bill 2018, boThof which seek to domesticate the CRPD. Zambia ratified the CRPD on 2 February 2010, and two years later, enacted the Persons with Disabilities Act 2012, which domesticates the CRPD. In 2019, Zambia also enacted the Mental health Act to which the right to legal capacity is directly relevant. Southratified the CRPD on 30 November 2007 and is instituting legal capacity reform through the Supported Decision-Making Bill.

For more than a decade, Mexico has undergone a substantive constitutional transformation. The 2011 constitutional reform on human rights empowers judges to strengthen the protection of all fundamental rights recognised boThby the Political Constitution and the human rights norms recognised in international treaties ratified by Mexico. This transformation has included the effective protection of the constitutional rights of persons with disabilities.

The Supreme Court of Justice of Mexico has undertaken several actions to fully adopt the social model of disability, whose main tenet is the elimination of all barriers that prevent the full exercising of rights under equality of opportunities. On the one hand, this Court has consistently affirmed in its judicial precedents, the equal right of all people to exercise their legal capacity, to be assisted to this end and to be safeguarded against abuses. To fully achieve this goal, the Court has exhorted legislative authorities to adopt concrete measures to align domestic laws with Article 12 of the UN Convention on the Rights of Persons with Disabilities. On the other hand, the Court has adopted specific protocols to facilitate access to justice for people with disabilities and has designed and promoted training programmes and activities to consolidate a deeper legal awareness about this matter.

This book represents a valuable contribution to deepening our understanding of what is required to protect the equal right to legal capacity and to avoid any discrimination based on the intellectual, cognitive, and psychosocial disabilities of a person. By looking at the theoretical, historical, comparative and critical dimensions of new legal regimes for legal capacity in Latin America and the world, the Supreme Court of Mexico expects to contribute towards the global goal of making all human rights effective to all.

The lawyer in the role of enabler is concerned with protecting and defending the rights of the client as well as helping the client achieve their personal and business objectives in a potential conflict with individuals, organizations, or public authorities. The lawyer in this role tends to apply substance communication, symbolic influencing, and information selection and control. Substance is legal arguments based on statutes in laws, regulations in procedures, and former decisions in district courts, courts of appeal, and the Supreme Court. Symbols are presented artifacts to portray the client in a better light by communicating both with opposing parties as well as with the media or other suitable outlets, in terms of garnering influence in favor of the client about the relevance and justice for the client to achieve goals and objectives. Information control is concerned with the selection of information that might benefit the client and the avoidance of information that might harm them (Gottschalk, 2014).

The Norwegian law firm Thommessen is one of Norway’s leading commercial law firms with offices in Oslo, Bergen, Stavanger, and London. A total of 220 lawyers work for the firm. The following message from managing partner Sverre Tyrhaug was present on its English website (www.thommessen.no/en) on August 21, 2021:

The frequently long-term relationship as a professional opportunity enabler is emphasized by other law firms as well, such as the Swedish law firm Mannheimer Swartling in terms of being an enduring business partner (www.mannheimerswartling.se/en):

Unlike client defenders, who tend to put themselves before their clients by having a low opinion of their clients, whom they assume to be guilty of the crime in question (Newman, 2012), opportunity enablers are partners with clients in the joint ventures of helping the clients realize their ambitions and reach their goals. Clients are assumed to have the right to explore and exploit opportunities as long as this is done within a legal framework.

As argued by Litchfield et al. (2021), knowledge workers invest heavily in developing their human capital for work in the form of knowledge in addition to skills and abilities. This demands engagement and creativity, which in turn encourages lawyers to define themselves through their work. Knowledge represents the fuel that feeds the engine of creative idea generation (Mannucci and Yong, 2018).

Knowledge is often defined as information combined with interpretation (understanding), reflection (thinking), and context (situation). Knowledge is a reducer of uncertainty and complexity or relation to predict and select actions (Mofokeng, 2021). Knowledge is a meaningful organization of information that expresses an evolving understanding of a subject and establishes a basis for judgment and the potential for action (Ntsoereng, 2021). In a hierarchy, data are at the bottom moving into information and knowledge, and finally to wisdom. Data are numbers and letters that do not make sense. Put into a reference that makes sense, data transform into information. Information refers to facts that can be understood, stored, and transferred (McIver et al., 2013). When information is combined as stated, then it becomes knowledge. Accumulation of knowledge over time in the form of learning becomes wisdom.

A simple example is the number 60 for a person. It might be the person’s weight or the person’s age. When it is determined that the person is 60 years old, then data is turned into information. Reflecting on the person’s age depending on gender, nationality, and other age-related factors, the person can be considered old or not so old. In some countries, the average life expectancy is below 60 years, while in other countries, the average life expectancy is above 60 years.

1. THE CHARACTERISTICS OF KNOWLEDGE WORK

McIver et al. (2013) distinguished four types of knowledge work practice based on underlying knowledge characteristics involved in doing the work. Knowledge work practice refers to the way in which work gets done and knowing how to do it. Knowledge work practices are the actions engaged in by lawyers as knowledge workers to accomplish the ongoing work of the firm for its clients. The four types of practice derive from the dimensions of tacitness and learnability.

The most important business processes are often found in the law firm’s value configuration. A value configuration describes how value is created in a firm for its customers. A value configuration shows how the most important business processes function is to create value for customers. A value configuration represents the way in which a particular organization conducts business. The best-known value configuration is the value chain (Gottschalk and Khandelwal, 2003).

In the value chain, value is created through the efficient production of goods and services based on the input of a variety of resources. The firm is perceived as a series or chain of activities. Primary activities in the value chain include inbound logistics, production, outbound logistics, marketing, and service. Support activities include infrastructure, human resources, technology development, and procurement. Attention is focused on performing these activities in the chain in efficient and effective ways.

Value cannot only be created in value chains; it can also be created in two alternative value configurations: a value network and a value shop (Stabell and Fjeldstad, 1998). Value chains, networks, and shops are compared in Table 11.1. A value network is a company that creates value by connecting clients and customers that are, or want to be, dependent on each other. These companies distribute information, money, products, and services. While activities in both value chains and value shops are done sequentially, activities in value networks occur in parallel. The number and combination of customers and access points in the network are important value drivers in the value network. More customers and more connections create more value to customers. Examples of value networks include telecommunication companies, financial institutions such as banks and insurance companies, and stockbrokers. Value networks perform three activities:

• 1. The development of customer networks through marketing and recruitment of new customers to enable increased value for both existing customers and new customers.

• 2. The development of new services and improvement in existing services.

• 3. The development of infrastructure so that customer services can be provided more efficiently and effectively.

The current technology situation in a value network will mainly be described through the infrastructure in activity 3 in the above list, which will typically consist of information technology.

In recent years, research articles and media reports have suggested major changes in the legal services industry. Some have even made forecasts of a paradigm shift in the industry, mainly because of globalization and technology. While the industry of providing professional legal services is certainly changing over time, as is the case in most other industries, a fundamental change in the basic concepts and practices as suggested by a paradigm shift is not occurring. Two decades ago, Susskind (2003) suggested that technology would completely transform legal practice. Similarly, Sherer and Lee (2002) argued that resource scarcity would cause institutional transformation. More than a decade ago, Sechooler (2008: 245) attempted to understand the changing legal services industry in the context of globalization:

Of course, the legal field is not only local but also global. For example, shipping law on the oceans has been global for more than a century. Information technology has impacted all areas of legal work, both in terms of administrative matters and in knowledge support systems. For example, case-based reasoning is an application where lawyers can review a current case in light of solutions to similar cases in the past that are stored in their database. However, changes in professional legal practice are not disruptive, but rather build on the strengths of the past. Some law firms are expanding internationally. For example, the ten biggest international law firms practicing in South-Africa are as follows (Ntsoereng, 2021): White & Case, Allen & Overy, Baker McKenzie, Hogan Lovells, Fasken, DLA Piper, Norton Rose Fulbright, Eversheds Sutherland, Dentons, and Herbert Smith Freehills.

Lawyers work in law firms, and law firms belong to the legal industry. According to Becker et al. (2001), the legal industry will change rapidly because of three important trends.

This book has provided the first thorough examination of the concept of lawyer roles in knowledge work, offering a detailed comparative exploration and analysis of the globalized legal services industry in terms of individual and corporate professional function. Knowledge management has long been identified by scholars in the business sphere as a key strategic device in the development of complex organizations and developing markets. Nevertheless, this essential process has been largely ignored within socio-legal studies and professional practice applications as a specific subject for close scrutiny. This book has addressed this anomaly. It has recognized the strong lineage and correlation that exists between the study of knowledge management and contemporary legal practice. Using an interdisciplinary focus which included illustrative case studies, the book has explored European, North American, and global perspectives and models to identify, position, and reveal the forward-looking lawyer as defender, enabler, and investigator . In doing so, it has re-evaluated current strategic legal practice and organizational behavior within the context of changing patterns of business, workplaces, social rules, systems of governance, decision making, social ordering, and control.

A founding premise of this book was that a lawyer is fundamentally a knowledge worker providing legal services to clients. In the role of enabler, the lawyer tends to be in a long-term relationship with the client. This is an enduring relationship involving some level of permanence. Lawyers experience stability as they recognize repeated work elements and interactions with the same clients. Social identification at work is in the tradition of being understood in terms of partnership or another role in the law firm with a stable group of corporate and/or individual clients. There is an enduring and significant relationship with others at work as well as with continuing clients in the market for legal services. In the roles of defender and investigator, the lawyer tends to be in a shortterm relationship with the client, forming temporary relationships again and again in their working lives. Such transient relationships derive from a project-based organization of work, with arrangements existing as inherently disposable exchanges that are disbanded on the completion of work. There are short-term, unpredictable transactions in transient relationships, with legal professionals experiencing temporary, transient, and restricted (if repeated) elements of relationships.

Kammeradvokaten is a law firm in Denmark. In addition to advising private Danish and international clients, it has been the preferred legal adviser to the Danish government since 1939 according to text on its website (www.poulschmith.com), where the firm carries both the name Kammeradvokaten and the name Poul Schmith. The firm mentions its services on this website, which include arbitration, acquisition, compliance, and investigation (www.poulschmith.com, accessed August 16, 2021):

Two reports of investigations by lawyers at Kammeradvokaten became publicly available in 2020, and thus the reports are relevant for the review of the role of the lawyer of corporate investigator given here. First, the report on the Banedanmark railroad is reviewed extensively (Kammeradvokaten, 2020a), followed by a shorter review of the report on Ejendomsstyrelse property management agency (Kammeradvokaten, 2020b).

1. THE BANEDANMARK RAILROAD INVESTIGATION

In the summer of 2018, Banedanmark noticed an article in the Danish newspaper Berlingske that stated there were rumors of financial crime having been committed by some employees in the public railroad maintenance organization for several years. Banedanmark is a stateowned company that is responsible for operating and maintaining the entire Danish railway network. The company outsources several service functions to outside vendors. The newspaper article was based on journalists having received a number of anonymous tip-offs related to 23 named employees who were still or had previously been employed by Banedanmark. The tip-offs suggested that employees were guilty of misconduct and illegal activities such as bribery and abuse of power when cooperating with subcontractors over several years (Jessen and Jung, 2020; Jung and Jessen, 2020).

The corporate investigator is a detective in the private policing business undertaking internal examinations in client organizations. He or she conducts commercial inquiries by undertaking factual reviews of documents, interviews with suspects, and other investigative steps. The client expectation is that corporate investigators will uncover and verify the facts of the case, reconstructing past events and the sequences of events, allowing the client to make informed decisions to either litigate or resolve matters on a commercial basis (King, 2012, 2020a, 2020b, 2020c, 2020d, 2021). The corporate investigator is hired by both private and public corporations to find answers to questions (What happened? When did it happen? How did it happen? Who did what to make it happen or not happen? Why did it happen?), when there is suspicion of misconduct and potential financial crime by white-collar offenders (Button, 2020; Gottschalk, 2016, 2020, 2021; Meerts, 2014, 2018, 2019, 2020, 2021; Wood, 2020).

1. LEADERSHIP IN BRAINSTORMING FRAUD

During an internal investigation by fraud examiners, the examiners need to review findings and potential evidence of fraud. An element of the review process is brainstorming, where the examiners challenge each other on their thoughts and opinions. Brainstorming refers to a group creativity technique where efforts are made to develop new knowledge for a specific issue by triggering spontaneous ideas contributed by participants. Major investigations tend to involve a number of people where some are senior and some are junior to the knowledge needs of the specific examination. Professional standards for internal investigators require that fraud examiners engage in brainstorming as part of every review to inform fraud judgments throughout the investigation. A senior figure has to take on the leadership in the fraud brainstorming to secure responsiveness to fraud risk and fraud detection capabilities. The typical senior in a law firm is a partner in the firm. A law firm partner can play a critical role in leading brainstorming sessions and demonstrate the importance of this leadership in achieving brainstorming objectives.

Dennis and Johnstone (2018) conducted a natural field experiment examining the joint role of partner leadership and junior knowledge in fraud brainstorming. While their empirical study was concerned with audit partners and their subordinates, lessons can be learned from their study for law partners and their associates.

While pro bono activities have been skeptically discussed in the literature by Fabio (2021), Ryan (2021), and Whalen-Bridge (2021), as presented earlier in this book, many lawyers and law firms emphasize their pro bono activities in their communication on legal services markets. An example is the law firm Dechert, which posted the following message on its website (www.dechert.com) on July 1, 2021: “The American Lawyer ranks Dechert #1 for international pro bono work again.” The firm claims to be the leading law firm for international pro bono work. In the preceding year lawyers at the firm dedicated 7% of billable hours – more than 105,000 lawyer hours – to pro bono work. According to its website, Dechert is a global law firm with 24 offices around the world.

From this book’s perspective of lawyer roles in knowledge work, this chapter describes the work of Dechert lawyers as corporate investigators. They were hired to investigate a publicly sensitive corruption case, and their report of investigation became publicly available. Based on the investigation report and media coverage of the case (Cohan, 2021; Dechert, 2021; Gara and Voytko, 2021; Goldstein et al., 2020), it is possible to present and reflect on Dechert lawyers as corporate investigators in this chapter.

In 2020 the media reported the following statements: “the billionaire who stood by Jeffrey Epstein,” “Dechert’s Leon Black investigation: things you may have missed,” “What a sad tale of sycophants: Wall Street is not buying Leon Black’s Epstein story,” “Jeffrey Epstein’s deep ties to top Wall Street figures,” “Billionaire Leon Black is leaving Apollo following scrutiny over ties to Jeffrey Epstein,” and “Billionaire Leon Black, revealed to pay Jeffrey Epstein $158m, is stepping down” (Gara and Voytko, 2021). These headlines emerged as Dechert (2021) concluded an investigation on behalf of the board of Apollo Global Management. Jeffrey Epstein committed suicide in jail in August 2019 after being charged with historical sex offences, including the abuse of underage female prostitutes (Sampson, 2020). The suspected fraud was concerned with Black’s involvement with Epstein.

This chapter discusses a very different lawyer story: How a lawyer who went to prison for 9/11-related fraud got his law license back and became an ordained minister along the way. After nearly two decades without practicing, Jeffrey Grant got his law license back in May 2021. He served over a year in prison for lying about office space in order to get federal relief money after 9/11. He then went to seminary and opened a ministry serving white-collar defendants (Arvedlund, 2020; Dumas, 2018; Erb, 2020; Grant, 2020; Greene, 2021; Monaco, 2020; Osnos, 2021; Pavlo, 2019a, 2019b; Polverari, 2020). The ministry had several hundred members (White Collar Support Group, 2021). Grant noticed that many of the members had legal issues. This was one of his motives for getting his law license back (Coutu, 2021).

Grant’s role was not to be a defender, enabler, or investigator; it was to be a connector. The slogan for the community was the following statement: “It’s the isolation that destroys us. The solution is community” (White Collar Support Group, 2021). The mission of the community is given as follows (www.prisonist.org):

Grant started his law career in the way many young lawyers would dream of starting. He launched his own firm shortly after graduating from the New York Law School in 1981 and grew it, first in Manhattan and then in Westchester County, adding employees and clients. He served as outside general counsel to two large real-estate companies and kept adding staff. But then the cracks appeared after he was prescribed opioids for pain relief after rupturing his Achilles tendon playing sport.

Lawyer roles in knowledge work are a matter of individual efforts to accumulate and apply personal knowledge to client opportunities and threats. The individual lawyer as a knowledge worker has in their head a store of information combined with interpretation, reflection, and context that represent a resource enabling the lawyer to help clients in their defense against accusations and allegations, their exploration and exploitation of opportunities, and their need to find out what has happened through an investigation. While sometimes working alone, interactions with other lawyers as well as cocreation of knowledge with clients require an approach to knowledge management.

Knowledge management refers to a set of management activities aimed at designing and influencing knowledge creation and integration as well as the sharing of knowledge (McIver et al., 2013). Knowledge management is the process through which organizations generate value from their intellectual and knowledge-based assets (Nath, 2021). Learning is associated with knowledge management where learning is concerned with observation and reflection, formation of concepts and generalization, and testing concepts and ideas in real situations (Lee, 2020; Lopes and Fernandes, 2021).

Lawyers can be defined as knowledge workers. They are professionals who have gained knowledge through formal education (explicit) and learning (tacit). Often, there is some variation in the quality of their education and learning. The value of professionals’ education tends to last throughout their careers. For example, lawyers in Norway are asked whether they got the good grade of “laud” even 30 years after graduation. Professionals’ prestige (based partly on the institutions from which they obtained their education) is a valuable organizational resource because of the elite social networks that provide access to valuable external resources for the firm (Hitt et al., 2001).

After completing their advanced educational requirements, most professionals enter their careers as associates in law. In this role, they continue to learn and thus, they gain significant tacit knowledge through “learning by doing.” Therefore, they largely bring explicit knowledge derived from formal education into their firms and build tacit knowledge through experience (Hitt et al., 2001).

Coinciding with a move to professional management, law firms have increased their emphasis on billable hours for attorneys.