The Performativity of Oaths, Affirmations and Statements of Principles

The Law Society of Upper Canada (LSUC) has recently announced a new policy that requires all lawyers in Ontario to “create and abide by an individual Statement of Principles that acknowledges your obligation to promote equality, diversity and inclusion generally, and in your behaviour towards colleagues, employees, clients and the public”. Each lawyer will be required to affirm, in that lawyer’s annual regulatory filing with the LSUC, that the lawyer has created and abided by the Statement of Principles (which I’ll refer to in this post as the “ED&I Affirmation“). The LSUC has also provided sample or “template” Statements of Principles that lawyers can adopt, adapt, or use for inspiration as they see fit. The LSUC has not been perfectly clear in its communications about what consequences will attend a failure to provide an ED&I Affirmation; at minimum, such failure will constitute “non-compliance” and will, at least in 2018, result in a written notice of non-compliance, but whether there will be further penalties in the future remains to be seen.

The new policy has prompted a fair number of objections, and I’d like to outline why I think the ED&I Affirmation is an appropriate regulatory approach and should be supported.

At the core of my argument in favour of the ED&I Affirmation is the performative nature of oaths and affirmations. Swearing an oath is an important, indeed constitutive, part of the identity of Ontario lawyers. Lawyers are required to swear an oath upon, and as a condition of, being called to the Bar. The text of that oath can be found in LSUC’s By-Law 4 (on page 25 of this .pdf document) and is reproduced below. Oaths and affirmations of oaths are good and valuable things, particularly for members of professions, because, as performatives, they assist us in cultivating in ourselves the types of sentiments and behaviours that should guide our conduct – oaths and affirmations are, in short, instruments for improvement, both of ourselves and our profession more broadly.

Here is the text of the current lawyer’s oath in Ontario (bolding is added by me):

I accept the honour and privilege, duty and responsibility of practising law as a barrister and solicitor in the Province of Ontario. I shall protect and defend the rights and interests of such persons as may employ me. I shall conduct all cases faithfully and to the best of my ability. I shall neglect no one’s interest and shall faithfully serve and diligently represent the best interests of my client. I shall not refuse causes of complaint reasonably founded, nor shall I promote suits upon frivolous pretences. I shall not pervert the law to favour or prejudice any one, but in all things I shall conduct myself honestly and with integrity and civility. I shall seek to ensure access to justice and access to legal services. I shall seek to improve the administration of justice. I shall champion the rule of law and safeguard the rights and freedoms of all persons. I shall strictly observe and uphold the ethical standards that govern my profession. All this I do swear or affirm to observe and perform to the best of my knowledge and ability.

The ED&I Affirmation is best understood as effectively an extension of the obligations, and of the type of obligations, that Ontario lawyers agree to abide by when they swear their oath upon being called to the Bar. If there is a problem with the ED&I Affirmation, it is that it is currently sui generis among the regulatory obligations of lawyers – if anything, lawyers should be obliged to more often affirm their fidelity to the principles and values contained in the lawyer’s oath. If the ED&I Affirmation exposes a lacuna in the LSUC’s regulatory scheme, it is that the LSUC doesn’t currently ask lawyers to affirm they have acted in conformity with their oath (or, bizarrely, even with the Rules of Professional Conduct). The LSUC should. Were it up to me, the existing oath would be modified to include wording similar to that found in current Rule 6.3.1 and its Commentary, to the effect that lawyers are obliged to “respect the dignity and worth of all persons and to treat all persons equally without discrimination”, and even further to require a commitment to advance justice, and not merely access to it.

Why do we require lawyers to swear oaths? Because oaths, and affirmations of oaths, are, to borrow from the philosophy of language, performatives – by uttering or adopting the words, we perform an action which changes social reality. When I promise to do something (“I promise I will bring you the documents by Friday”), I’m not only describing a state of affairs, I’m making a binding commitment to bring about the relevant state of affairs. Oaths are a kind of super-promise – promises that are, or should be, constitutive of our characters – when I profess an oath, I’m not only promising to change the world out there, I’m committing to bringing about change in myself to the extent needed to fulfill my promise. In the following discussion of oaths, I’m borrowing from Daniel Sulmasy’s work on the topic, particularly his “What Is an Oath and Why Should a Physician Swear One?” (1999).

We require oaths, and we take oaths, because we want to improve things in certain ways attested to by the oath. Oaths bind the oath-taker in particular ways, but mostly importantly in the sense that an oath “is a commitment to be a particular sort of someone” (Sulmasy (1999) at 332; emphasis in original). By requiring prospective lawyers to take the lawyer’s oath, we seek, and seek to be, the sorts of someones who will “seek to improve the administration of justice … champion the rule of law and safeguard the rights and freedoms of all persons”. Oaths are promises not just to others, but in a meaningful sense they are promises to our fellow professionals and, perhaps most importantly, to ourselves, performative imaginings of the kind of people we want to be. The ED&I Affirmation, understood as an extension of the lawyer’s oath, is likewise a commitment to be the sort of someone who fosters equity, diversity and inclusion.

We almost certainly will stumble in that seeking. We’re human, and therefore fallible. But the aspirational function of the oath should not be overlooked or too quickly dismissed. Oaths do, or at least should, impose an obligation to attempt to reconcile ourselves to the commitment we have made – we won’t always live up to our oaths, but we should strive to, and account at least to ourselves when we don’t. That’s in part why I like the idea of the annual affirmation of oaths – it serves as an opportunity to remind ourselves of what we’ve committed to do, and assess where we might have fallen short.

The lawyer’s oath is an attempt to make those who take it embrace, as a matter of conscience, principled commitments to furthering the rule of law and safeguarding the fundamental rights and freedoms to which individuals are entitled. I have seen no explanation of why the requirement of such commitments, in the abstract, is objectionable, still less to why these particular commitments (in the lawyer’s oath, to promote the rule of law, safeguard rights and freedoms, and, in the ED&I Affirmation, promote or foster diversity and inclusion) are objectionable.

It is also worth highlighting the connection between the existing admonition to “respect the dignity and worth of all persons” and the goals of diversity and inclusion. Commitment to the principle of human dignity seems non-controversial to me – indeed, it seems foundational to any contemporary notion of the rule of law. A commitment to equity, diversity and inclusion seems to me to simply an extension of a commitment to human dignity. Of course there will be disagreement – sometimes profound and irresolvable disagreement – on how best to recognize or implement a recognition of human dignity or equity, but the ED&I Affirmation does not require subscription to, or conscription in, specific policies or actions.

Oaths and affirmations are valuable because they are constitutive, performative, moral acts – the moral values inherent in the lawyer’s subversion of his own interest to that of his client, the commitments to maintaining confidences and to advancing the rule of law, all of those find their origin in the adoption and the professing of the lawyer’s oath. The legal profession – as an institution, as a social sphere within which activity occurs – is the repository of enormous political and social power. When an institution wields that much power, it is important that its internal predilections lean towards other-oriented goals, such as justice and inclusion, otherwise the institution risks confining and ossifying its power in inherited castes, a result that is detrimental to society in the long term.

All of this talk of oaths and affirmations may sound incredibly dissonant to some (many? all?) – naive or cloying or impossibly self-congratulatory. That’s fine. There’s certainly something to be said for a technocratic conception of the legal profession, that the only relevant criteria for admission and continuation is that you have read the assigned material and passed the required test – effectively, that we have no more by way of moral commitments to offer than, say, a management consultant. But I don’t think such an approach would be either accurate or desirable. When we swear oaths and affirm principles, we seek to change ourselves and the world for the better. A profession that doesn’t require that of its members probably isn’t worth the name, and certainly isn’t worth the esteem.

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