legal-terms comparative-law
Why &#39;Solicitor General&#39;, and not &#39;Barrister General&#39;?
<p>In countries with this dichotomy of the legal profession, mostly barristers argue in courts. In the UK, solicitors with Higher Rights of Audience can argue in lower courts.</p>

<p>However, if <a href="http://en.wikipedia.org/wiki/Solicitor_General" rel="nofollow">Solicitors General</a> argue in courts, then ought they not be called 'Barristers General'? Does this nomenclature contradict the English definitions of 'barrister' vs 'solicitor'? </p>

<p>The dichotomy between solicitors and barristers in the UK isn't one based on verbal definitions in the English language. In other words, the fact that barristers argue and solicitors don't isn't something that's inherent to the words, it's just how British law decided to divide it. Since those countries with solicitor generals don't have this dichotomy, they generally don't have anything actually called a barrister, and there's no reason why the solicitor general couldn't be called that, since solicitor doesn't require that he not argue in court.</p>

<p>The Solicitor General was the second <a href="https://en.wikipedia.org/wiki/Law_officers_of_the_Crown" rel="nofollow noreferrer">Law Officer of the Crown</a>, emerging during the reign of Edward IV (1461–1483). Over the centuries, the offices of Attorney and Solicitor General came to exercise a unique combination of political and legal functions, which evolved differently when adopted by other jurisdictions with different constitutions. The title predates the modern understanding of &quot;solicitor&quot; as a practising lawyer who is not a barrister.</p>
<p>The critical feature of the office of Solicitor General is that it is junior to the Attorney General, not that it is occupied by a lawyer who would be qualified to practise as a solicitor. While the Attorney General exercises executive power directly and therefore holds a political office, the Solicitor General is more like an ordinary professional lawyer who deals with the government's biggest legal problems. This includes responsibility for advocacy in the highest courts. Therefore, in split profession jurisdictions, the Solicitor General looks more like a barrister than what is now understood by &quot;solicitor.&quot;</p>
<p>The historical background is traced in WS Holdsworth, <a href="https://heinonline.org/HOL/Page?handle=hein.journals/illlr13&amp;div=57&amp;g_sent=1" rel="nofollow noreferrer">The early history of the Attorney and Solicitor General</a> 🔒 (1918–1919) 13 <em>Illinois Law Review</em>
602:</p>
<blockquote>
<p>[T]he offices of attorney and solicitor general only began to assume their modern shape in the course of the sixteenth century; and it was not till the end of the seventeenth century that they in substance attained it. By that date they had become legal advisers of the crown …</p>
<p>How was it that the king came to appear in the courts, and to be advised on points of law by an attorney and a solicitor, at a time when the profession of attorney was becoming sharply divided from that of barrister, and at a time when a solicitor was approximating to an attorney, but was still regarded as inferior to him?</p>
<p>In order to solve this problem we must, in the first place, consider the very large differences between the development of the king's attorney and solicitor and the development of the ordinary attorney or solicitor; and, in the second place, the great increase both in the amount and the character of the demands made upon the king's legal advisers in the new age which opened in the sixteenth century …</p>
<p>We hear of a king's attorney in the thirteenth century, that is at a time when the legal profession had not yet taken its final form. Like the attorneys of other people, he is often only appointed for a particular court; like them he is sometimes formally admitted by the court; and like them he can both plead and take all the necessary steps in the action. But there are differences. The king could appoint an attorney general—an attorney to conduct any litigation that might arise—as he pleased, at a time when other persons could only do so by the express license of the king …</p>
<p>By the beginning of the seventeenth century this development was practically complete. Hudson tells us that it was resolved in 1604 that the king's serjeant [barrister] could not, like the king's attorney, proceed on his own motion by information in the Star Chamber. He could apparently only act if he were specially instructed. In other words, the attorney general was the only person who could take the initiative in legal proceedings on behalf of the crown. Why was it that he had thus been able to gain so decisive a superiority to the serjeants?</p>
<p>The order of the serjeants was essentially medieval; and the king's serjeants were medieval officials. Like many other medieval officials, they were obliged to give place to officials who had originally occupied a humbler position, because these officials were, for that very reason, more capable of adaptation to the needs of the modern state. Thus the rise of the king's attorney and solicitor, at the expense of the king's serjeants, is, in the legal sphere, a phenomenon of the same kind as the rise, in the political sphere, of the king's secretaries, at the expense of many older medieval functionaries.</p>
</blockquote>
<p>Further reading on the history of the Law Officers can be found in:</p>
<ul>
<li>JW Norton-Kyshe, <a href="https://books.google.com.au/books/about/The_Law_and_Privileges_Relating_to_the_A.html?id=5hlHAQAAMAAJ" rel="nofollow noreferrer">The law and privileges relating to the Attorney-General and Solicitor-General of England, with a history from the earliest periods, and a series of king's attorneys and attorneys and solicitors-general from the reign of Henry III to the 60th of Queen Victoria</a> (1897)</li>
</ul>
<ul>
<li>JLJ Edwards, <a href="https://books.google.com.au/books/about/The_Law_Officers_of_the_Crown.html?id=hIEjsmUE5d0C" rel="nofollow noreferrer">The law officers of the Crown; a study of the offices of Attorney-General and Solicitor-General of England, with an Account of the Office of the Director of Public Prosecutions of England</a> 🔒 (1964)</li>
</ul>
<ul>
<li>(United States) SP Waxman, <a href="https://www.justice.gov/osg/solicitor-general-historical-context" rel="nofollow noreferrer">Presenting the Case of the United States As It Should Be</a> (1998)</li>
</ul>
<ul>
<li>(Australia) G Appleby, <a href="https://www.booktopia.com.au/the-role-of-the-solicitor-general-gabrielle-appleby/book/9781509924721.html" rel="nofollow noreferrer">The Role of the Solicitor-General Negotiating Law, Politics and the Public Interest</a> 🔒 (2018)</li>
</ul>
