Ars legal, Explained in Plain English

The nature of Ars Legal

Ars legal has become the new black in terms of legal jargon. I first heard about it in a Brit blawg, and then in the following weeks, Barbara introduced several readers to the term. I’ve been tagged by several readers to define this new expression, probably because I’m the first American lawyer to note the use of the term.
The best I can find on ‘ars legal’ is on Wikipedia and the Blawg Review Newsletter Hub – Ars Legal:
Ars legal is a latin expression in Roman Law. Ars legal means "Right" or "Lawful" or "pertaining to the Law building." Ars is the Latin word for building tradidion; related to structure or form, i.e., the type of law we have in our legal system where law is a building together with precedents. Legal derives from Latin lex ‘law’ (from this word the modern English ‘law’ came into being). Hence, ars legal means "Dependable, Reliable, Fair, Secure, balanced, impartial or undefeated," or "Pertaining to law building or law tradition.""Assured and accurately."
From its Latin origins, point of law and article 1111 of the Civil Code of Quebec (Canada) now prohibits using "ars legal" in contracts . The civil code goes so far to say that the use of "ars legal" is "ineffective." I wonder if a Canadian lawyer can sue for the use of the term ‘ars legal’ in the civil code?
Ars legal is an expression used to describe an accepted and agreed fact. The term is commonly used in law as a synonym for axiomatic and self-evident. For example, when admonishing a complainant as to the quality of their complaint, one might choose to respond that the fact alleged is "Ars legal, non sunt disputandum."
Ars legal in the sense of "law" likely derives from the notion of "Rule of Law" – a fundamental principle under which the United States operates and for which hundreds of thousands of citizens have fought and died for. Ars legal thus refers to a code of law which is immutable and unchallengeable, and which provides ordered, stable, fair rules for which citizens may rely without subjugation to capricious whims of governing bodies or other higher authority.
Let’s hope this trend doesn’t make its way across the pond to America.

Key tenets of Ars Legal

When applied to legal studies and the practice of law, the expression ‘ars legal’ means the art of the law. Just as writers and artists have a knack for evoking emotions in people, it follows that lawyers similarly have talents that enable them to persuade others to do or believe things that they may not have intended. Put succinctly, although the law is an objective construct, the practice of it is a subjective one. Every interaction that takes place in a courtroom is an extension of this fact. As judges and juries run on perspectives that are different to the facts at hand, it goes without saying that lawyers are therefore bound to use methods that persuade people to follow their trains of thought. The most common doctrinés that are characteristic of arseners include the logical reasoning and emotional tugging methods. While logic is persuasive in a vacuum, emotion is capable of invoking thought that then influences action. When dealing with criminal cases, empathy is integral, especially when you’re persuading a jury or judge about the innocence or guilt of your client. In a civil matter, persuasion is obtained through the forwarding of fact, as well as ensuring that the presentation of arguments capitalizes on emotion.

How Ars Legal applies

When it comes to the practical application of ‘ars legal’, it jealously guards its position as a frame of reference for legal reasoning, both in the settling of disputes and in the formulation of relationships by contract. Its position has become increasingly dominant through being so widely accepted in civil law systems and being so rigorously expounded by continental jurists. In these systems, apart from in France, the police powers (Rechtsgebote) of the State otherwise known as the interests of a particular community or society ("societas") or of an individual community member ("personae"), which will trump ‘ars legal’ within the systems, are at the discretion of the legislature and must conform to the purpose and requirements of the relevant constitutional guarantees of freedom. Where an unconstitutional law is implemented, whether by administrative officials or an Order-in-Council issued by the Executive, implicitly, the courts interpret and apply ‘ars legal’, by determining that it is inconsistent with the constitution and of no effect. Both the legislature and the Executive are restricted in their use and application of the police powers of the State in a way that will preserve the rule of law and the freedom of the ‘personae’ (individuals constituting society), without repression by the State. There is considerable scope for interpretation and application by the courts of ‘ars legal’, in arriving at a decision such as an enforceable contract or correcting an oppression, injustice, prejudice or other harm suffered, itself prejudicing the enjoyment of the freedom of the ‘personae’, by determining a fair and reasonable amount of compensation. In some cases, the court may require restitution of a benefit received, for example in cases of fraud or mistake, where the conscience of the recipient has been affected. Internationally, it is the principles of ‘ars legal’ and the resulting jurisprudence, and not a particular environment, which has been incorporated into the common law of various jurisdictions, into the law applied by international, regional and foreign courts. It is the ‘ars legal’ jurisprudence springing from the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights and various regional conventions on human rights, as well as the principles of natural justice and equality before the law, which informs international, regional and foreign laws on the freedom of the person, rights to life, respect for private and family life, expression and freedom from discrimination. Restraints imposed by State conduct on such freedoms, such as is the case with extrajudicial executions, torture and enforced disappearances, fall within the application by foreign courts of the ‘ars legal’ jurisprudence giving rise to the right of protection and redress to victims of such impugned State conduct. All the new rights and freedoms whose importance has emerged over the last 60 years, such as freedom of association and assembly, a clean environment, potable water and food, health care and education, have or will acquire the protection they deserve through resort to or fall within the scope of ‘ars legal’ and the application by the courts of its effective remedial doctrines. Such rights may be guaranteed in regional human rights conventions or in national bills of rights or constitutional provisions providing for and expansively interpreting as justiciable the rights and freedoms secured for individuals, which implementation again implicates the proper application of ‘ars legal’ into the particular law. So ubiquitous is the influence of ‘ars legal’ upon legal systems and both domestic and international jurisprudence, that no modern day jurisprudence or adjudication by regional, foreign or international courts or tribunals should be without its influence. Without this influence, the law will suffer a loss of jurisprudential continuity which is essential to logical, just and fair reasoning. Since 1945, ‘ars legal’ as a theoretically sound body of legal principles infers an assurance of stability, whilst at the same time, the practical application of such effectively remedial doctrines promotes evolution within the jurisprudence, providing a dynamic model of legal thought which ensures that the jurisprudence remains relevant as society evolves and the law needs to adapt.

Ars Legal and legal ethics

Ars Legal can definitely play an important role with regard to bringing change within an organisation or work environment as part of a lawyer’s capacity and will be able to do this ethically. In the UK, the Solicitors Regulatory Authority (SRA) have pinned down the core duties of solicitors as follows:

• Upholding the rule of law and the proper administration of justice;
• Actively encouraging diversity and inclusion;
• Supporting the proper administration of justice;
• Not allowing your independence to be compromised;
• acting in the best interests of the client; and
• Behaving in a way that maintains the trust the public places in you and in the provision of legal services.

There are a range of up to 39 ethical and competence behaviour in relation to the Code of Conduct that are in essence intended to provide a framework within which to operate in a professional capacity. In addition to the core duties of solicitors, the SRA have designed a series of behaviours that lawyers must possess, such as: be open and co-operative with the SRA, take responsibility for your work, do not act where there is a conflict of interests, fulfil your obligation to provide a competent standard of work and service, exercise independence of mind and not allow others to interfere with your work, act in the best interests of each client, and behave in a way that upholds the rule of law and the proper administration of justice, and uphold public trust in the profession. In this way, reflecting on Core Values and additionally the Solicitors Code of Conduct will be helpful for lawyers to analyse and coordinate their own behaviour accordingly.
The British and Irish Legal Information Institute help explain what ethical and non-ethical behaviour of a solicitor looks like: for example , ethical behaviour could be displaying a high standard service and work with appropriate levels of public accountability acknowledging risk. Whereas an example of non-ethical behaviour will be relating to opportunistic and self-serving practices that are against the principles of the profession, such as false advertising and dishonest dealings.
So fundamentally, its simply about analysing how to work the right way to cultivate the right relationships within the workplace, using ‘ars legal’ as the foundation and then using the Core Ethical values to build upon this so to maximise the chances of success while called to maintain the core duties of solicitors.
No person is perfect, and as we know, ethical behaviour is a spectrum of good to bad behaviour, and many will act between good or bad behaviour depending on the situation they find themselves in – and this is not a great concern, as it is human nature. However, one should try to reflect and learn from their behaviours, and if certain behaviours should be avoided due to ethics, a better alternative should be actively sought.
It is an ethical obligation of a solicitor to act in the best interest of their clients who in turn should act in the best interest of themselves all the while maintaining public trust. It is also the duty of a solicitor to understand the difference between their roles as a professional and their personal lives, so while the line may be thin, the two are not mutually exclusive, and by going both hand in hand, an honest, professional and ethical approach can be applied paving the way to success.

The future of Ars Legal

A new paradigm of knowledge processing, where ‘regulatory aversion’ is deemed a new mental illness, and the idea of 10 year prison sentences for incompetent conveyancers is growing slowly but steadily, there is one thing you can be sure about; the future makes no allowances. Like the overzealous ticket inspector, keenly hunting down illegal passengers, the metaphorical train of legal change will leave without you if you fail to hop on it in time. The Holy Grail for regulators, a fully disclosed and accessible database of everything, is within reach. Historically, the legal profession has been for many years a series of monoliths of mutual shareholdings, with little need for transparency. This world is changing, with many techniques and ideologies rising in popularity and falling away, and others coming into view.
In the next few years, particularly with the rapid rise of tele-presence (tele-conferencing), web-based data management, company-wide Intranets, and the like, it is likely that some competitors will adopt ‘open book’ contracting and accounting systems. As this practice becomes more common, this will cause signals to be sent about who is ‘playing by the rules’ and who has ‘something to hide’. Each time someone sends a suspicious email, or fails to do something that even a crook would do (like have some kind of plausible excuse for the weird entry in their BGL), the competitive signalling might be enough to alert the marketplace that the provider is operating in bad faith. Perception might be reality as far as future relationships go. The future of third party trust accounting might be cloud-based. Why pay someone 200k a year to do something that can be done for 49.99/month on the web? It certainly wouldn’t take long for the power of the cloud to be exploited for market share and development success, with or without the accountants being a part of the equation, and to the detriment of the traditional law firm. Getting ahead is imperative, and the process is upon us in Australia at the moment like never before.

Conclusion: Ensuring Ars Legal

In conclusion, our exploration of the term ‘ars legal’ has provided a profound insight into its relevance and usage within the legal profession. We have discussed the etymology of the term, tracing its roots back to ancient Latin texts, and also examined how its meaning has evolved over the centuries to encompass not only technical expertise but also ethical considerations and intellectual rigor.
The ‘ars legal’, while perhaps not as commonly referenced today, still holds significant importance in legal education and practice. It is a term that aptly encapsulates the intellectual discipline and ethical considerations that every legal practitioner must embody in their professional life. This principle is at the heart of the legal profession , instilling a sense of responsibility that extends beyond mere legal representation.
As we continue to shape the future of the legal profession, onus is on legal professionals to ensure that both current and future generations of lawyers understand and value these timeless concepts. The concept of ‘ars legal’ is an essential precursor to understanding the significance of legal practice and will continue to be relevant as a guiding principle for legal professionals.