Political Lawyering Research Paper

1. The Avoidance Of Politics

1.1 Functionalism And Its Critics

Functionalism dominated the sociology of professions, including law, during the years 1950–70. Since functionalists sought to understand the link between knowledge and social needs—or, more precisely, to study the social control of knowledge—the logic of the profession solved the intractable problem of the balance between esoteric, dangerous knowledge in the hands of a potentially egoistic few and democratic control of those few which could in itself be destructive. Functionalists found a solution in the logic of a profession where (a) specific social structures (socialization, ethics, rewards, etc.) oriented the use and the development of knowledge in order to produce a relationship of service between professionals and society, and (b) society delegated to a ‘community’ a set of duties which were dominated by ‘institutionalized altruism’ and whose dedication to those duties was appropriately compensated by high social rewards (self-government, prestige, power, and some-times wealth). Yet the constellation of questions and concepts that were used to study lawyers, as a specific profession, did not refer either to politics or to collective action. History was not considered as the product of social action, but rather as the change to which a profession was compelled to adapt.

Although Talcott Parsons (1964) was the central figure of functionalism, he recognized that, due to its specific ‘interstitial’ position in the social structure, the legal profession cannot escape the political system. Through the different choices they make, lawyers, as intermediaries, facilitate or impede the task of political authority and favor or not transformations in legal interpretation. Yet even this analysis remains rather limited, because the terms that orient lawyers’ action—political authority, law, clients—are given, and because, with some room to maneuver, the legal profession is fundamentally defined by an integrative function.

In the 1970s, functionalism (among other theories) became the target of a critical sociology that leveled three charges against the sociology of professions:

(a) theory (in this case, the functionalist theory of profession) was nothing more than the reproduction of professional ideologies and a mask for gaining or keeping symbolic and material rewards;

(b) the so-called ‘service relationship’ was only a social mystification and, like the ideal of independence, was not justified by the quality of the service; and

(c) sociologists, therefore, were servants, unwittingly or not, of the professional elite.

Critical sociology rejected ahistorical studies, demanded realism about professional interests, and raised new questions about power, effectively anticipating the rise of market control theory.

Magali Sarfatti Larson opened up a new research program in the late 1970s. Devoted to the comparative and historical study of several professions in the United States, The Rise of Professionalism (1977) brought together two intellectual traditions: the European tradition, centered on Marx, Weber, and Polanyi; and the American tradition. It combined a historical framework with collective action (the mobility project), and it integrated the transformation of the market and the change of the symbolic systems through a very original analysis of the role of universities in creating legal service as a new commodity. An interpretation of Larson’s book became the central resource of a new school—market control theory—whose simplified thesis posited that lawyers are rent seekers who, to maximize their profit, use two complementary strategies: to reduce the supply of legal services by excluding competitors, and to increase demand for legal services by influencing the state. All the established and distinguishing characteristics of the legal profession— self-government, professional mortality, independence, controls over entry to the profession, moderate internal competition, and so on—still exist, but only as tools to extend market control and thus to increase economic and social profit. This perspective, which received its most expansive application in Abel and Lewis’s Lawyers and Society (1988a, 1988b, 1989), ignored politics, took for granted the capacity of professions to mobilize collectively, and assumed the ability of professions to impose their self-interested wills on legislatures and states. It directed scholarly attention away from lawyers acting collectively for reasons other than market control. Although erudite and fruitful in many other respects, Abbott’s jurisdictional theory of professions has a similar result. While Abbott (1988) offers acute insights into ways that professions mobilize knowledge in their scramble for control over work, he does not classify either the political processes by which professions secure and maintain jurisdictional control, or the activities of professions beyond control of work domains.

1.2 Institutionalized Politics

Originating primarily from political science and studies of political recruitment, many studies since the 1960s have sought to understand the significance of a widely observed phenomenon—the overrepresentation of lawyers in the legislatures of many liberal democracies, e.g., the USA, India, Canada, Venezuela, Australia, and the Netherlands (see Miller 1995). What are the effects of background and networks on legislative process? Does the prominence of lawyers in legislatures make a difference to policy outcomes?

Studies of the compositional or recruitment politics of lawyers show limited results. Lawyers’ actions in legislatures are rarely the expression of any collective professional orientations. Lawyers as legislators do not evince as a whole a coherent or distinctive substantive politics. They distribute themselves across political parties, so there is rarely a clear affinity with party ideology.

At least in the United States, the strong overrepresentation of lawyers in legislatures leads not to substantive outcomes but to a peculiarly lawyerly way of dealing with issues. According to Miller (1995, p. 174), who summarizes several decades of research as a context for his own findings on Congress and state legislatures, ‘the numerical dominance of lawyer politicians in US political institutions produces a government that is preoccupied with the procedurally oriented, incrementalist myth of rights, instead of with broader substantive questions of public policy.’ Thinking like a lawyer leads to reaction against radical change, it privileges procedural rationality over substance, and it produces a rights-focused approach to the solution of public problems. Policy-making alternatives are defined more narrowly and institutional parameters are largely taken for granted. Similar patterns may be observed elsewhere. Ledford’s (1996) study of German lawyers in the last quarter of the nineteenth century finds that, through their participation in national political movements and parties, lawyers were actively committed to the building of the Rechtsstaat, a rule-of-law society that would implement the protection of civil rights. But he also found that this procedural orientation faltered when faced, a half-century later, with the substantive challenges posed by National Socialism.

2. Political Lawyering

Sociologists, historians, and legal scholars have demonstrated that, in Europe and North America, legal professions, acting collectively, have been periodic but by no means consistent agents of political liberalism at particular times and places from the seventeenth century onwards. These scholars generally define political liberalism along three dimensions:

(a) a moderate state, which is an amalgam of the rule of law, strong intermediate associations that exist between the state and the individual and will defend the latter against the former, a balance of national and local political authority, and an institutional separation of powers between the executive branch of government and the judiciary;

(b) a civil society, which combines the existence of voluntary associations, religious institutions, and publics, which do not owe their existence to the state and can stand against it; and

(c) citizenship, most notably the civil element of citizenship, in which individuals gain legal rights and personality.

These scholars identify historical episodes in several countries in which political lawyering has facilitated the construction of the moderate state, civil society, and civil citizenship. The findings of these studies may be summarized in five propositions.

2.1 The Autonomy Of The Judiciary And The Autonomy Of The Bar Are The Principal Conditions For The Fight Of Lawyers On Behalf Of A Moderate State

Autonomy from the state has relevance for legal professions for two reasons. First, some independence of the judiciary from executive power is not only critical for establishment of a rule-governed state; and second, autonomy of the profession itself is the key element in this establishment, for without it no independent collective action will be possible. The fight for judicial autonomy can be found in eighteenth-century France where the parlements (sovereign courts with judicial and legislative functions) sought to enlarge their powers and control the person of the king and power of the royal court. Lawyers were the parlements’ most faithful allies. They supported the independence of the parlements by urging effective general strikes which brought the justice system to a halt, and by becoming the political thinkers of the struggle. Lawyers articulated the foundations of the moderate state with such slogans as ‘Laws are veritable contracts between those who govern and those who are governed.’ Since the 1870s, the bar in the USA has strenuously exerted itself to immunize federal and state courts from control by presidents or governors, congress or state legislatures, and federal, state and municipal bureaucracies. In Germany, where the judiciary was subordinated to the state, the lawyers’ campaign for a ‘free bar’ began in the 1830s with the aim of obtaining the institutional separation of judicial and administrative authority and the autonomy of law through adherence to judicial precedent. This movement reached its zenith in the Imperial Justice Laws of 1877–79, only to decline thereafter until the advent of National Socialism.

Seen from the vantage point of political liberalism, the autonomy of lawyers may be one of the key distinguishing features of a liberal political society. In England, the autonomy of the bar long preceded the emergence of an English state in the sixteenth and seventeenth centuries. It thus became a pillar of English constitutionalism, and was therefore able to resist effectively the attempted incursions of Charles II and James II on such ‘little commonwealths’ and ‘little republics’ that existed independently within the English body politic. In France, that autonomy grew consistently with the nurturance of the parlements from the seventeenth century to the present, with short interruptions during the Revolution and 1822–30. It was the absence of long-established, independently- secured autonomy in Germany, coupled with internal and external conflicts, which ultimately brought the bar under National Socialist control in 1933 and rendered it quite unable to defend judicial autonomy.

2.2 Lawyers’ Struggles To Institute And Extend Citizenship Are Diverse

Lawyers’ orientations towards the extension of citizenship can be distinguished along two dimensions: first, between substantive and procedural rights; and, second, among civil, political, and social concepts of citizenship. French lawyers have been the champions of substantive rights, such as the eighteenth-century efforts to defend the religious rights of Jansenists and to obtain property rights for peasants in Burgundy, or the nineteenth-century efforts to transform the courtroom into a political forum to fight against emergency laws, attacks on a free press, and limits on individual freedoms. In contrast, German lawyers in nineteenth or twentieth centuries did not press directly for substantive individual rights, but rather pursued them indirectly through proceduralism—which opened them to seduction by antiliberal sentiments in the 1920s and 1930s. In the United States, fringes of the profession variously championed substantive civil rights and rights to representation on behalf of the poor, but the central tendency of the profession has been to valorize procedural limits on state authority, as in the McCarthy period of anti-Communist purges.

2.3 Lawyers’ Collective Defense Of Civil Rights Does Not Extend To Struggles In Favor Of Economic And Social Rights, Or To Fights Against Racism, Xenophobia, Or Gender Discrimination

With surprising continuity across history and nation, lawyers have been strongly defined by a ‘pure’ civil rights model. Lawyers are not to be found collectively on the barricades of expanded welfare rights, of national political issues such as the universal ballot, or of the restriction of racism. During the civil rights era in the United States (1950s and 1960s), a few professional associations took collective action. In nineteenth-century France, few lawyers mobilized to defend the working class. Lawyers are limited liberals, most especially in relation to citizenship.

2.4 The Forms Of Lawyers’ Political Action Are Principally Reactive And Rely On The Authority Of The Public Or Civil Society

Compared to social movements, lawyers react against arbitrary or illegal actions by governments and repudiations of individual rights through trials that become ‘causes celebres.’ In Britain and France, use of the courts as forums came to constitute the political public sphere. Radical barristers in eighteenth and nineteenth-century England used the courts to rail against corrupt government, to publicize causes, and to champion rights. French barristers used their freedom of speech in the ancient regime to create extended legal briefs that effectively became political tracts. Not only did they stimulate debate within the enlightened public, but they claimed for themselves a representational role as the voice of the public. By contrast, lawyers in the United States used the institutions of civil society, which were well developed, to mobilize publics. In Germany, lawyers were able neither to constitute publics as an autonomous sphere, nor to mobilize the institutions of civil society, which barely existed.

2.5 Contradictory Movements Entangle Economic Globalization With Political Globalization On Behalf Of Liberal Institution-Building

The market has contradictory effects on political globalization of liberal political institutions. On the one hand, the global market has homogenizing effects on nation states at the same time as it stimulates national reactions against it. The extension of the global market also introduces more contradictions within segments of legal professions and thus inhibits their capacity to act collectively. On the other hand, the conditions of financial stability and global trade require institution-building, such as the rule of law, independent courts, and private professions. Thus, differing segments of legal professions come to constitute liberal politics through institution-building that will facilitate global commerce, and through advocacy on behalf of human rights and environmental responsibility among other fields.

3. Cause Lawyering

Cause lawyering is a form of doing politics (Sarat and Scheingold 1998, 2001). Whereas legal elites separate law from politics, and legal skills from moral calling, cause lawyers seek to ‘reconnect law and morality.’ Unlike the classic image of the lawyer as ‘hired gun,’ prepared to serve a client whatever the merits of the client’s case and however wide the gap between the values of lawyers and clients, cause lawyers usually identify with the values and causes of their clients. They may even join with clients in political and social movements to advance a common goal. Thus, cause lawyers have a substantive vision of the good society and they use their legal skills to produce it.

If political lawyering is defined by the defense of political rights construed narrowly, the range of causes can be enormously variegated, encompassing pay equity, animal rights, capital punishment, Bedouin land rights, struggles against military repression, women’s rights, peasant movements, and human rights, among a multitude of others. (See the case studies in Sarat and Scheingold 1998, 2001.)

Scheingold (2001) shows that cause lawyering is both constant and contingent, and that cause lawyers must choose between frequently uncomfortable alternatives. There is a constancy and coherence that transcends time and place for, while ‘cause lawyering is frequently directed at altering some aspect of the social, economic, and political status quo,’ (Sarat and Scheingold 1998, p. 4) cause lawyers are everywhere caught between two visions of democracy—of legal and political rights versus social and economic rights. They lean towards the latter and its emphasis on ‘egalitarian values and redistributive policies.’ Since they face an enormous variety of political regimes (totalitarian, colonial, authoritarian, repressive, liberal democratic, neo-corporatist) with quite different sets of resources, and since their causes are highly diverse, the expression of cause lawyering and its efficacy is highly contingent.

3.1 Strategies Of Cause Lawyers

Cause lawyers must usually choose between two broad strategies, although these frequently blur in practice (Scheingold 2001). To follow a legal strategy means operating within the very mainstream of professionalism, with which cause lawyers constantly struggle. Thus Israeli civil rights lawyers defend Palestinian ‘terrorists’ against Israeli security officials within Israeli courts. This may be somewhat effective on narrow grounds but leaves the larger status quo intact. To follow a political strategy, and to identify with the cause of clients, may take the form of a political advocacy through social and political movements that extends well beyond legal constraints, as evidenced by many cause lawyers in Latin America. This allows much greater scope of advocacy, but reduces the scope of professional collective action since it marginalizes the cause lawyers.

Similarly, cause lawyers must choose between distance from the state versus close proximity to the state. On the one hand, a close relationship with the state, through cooperation with state authorities, such as maintained by cause lawyers in post-Apartheid South Africa, may yield results while significantly constraining the scope of action, for lawyers are bound by the limits of state institutions. Yet many of the ideals advocated by cause lawyers cannot be achieved without the exercise of state authority, as in the extension and enforcement of new rights, or the complicity of state officials. On the other hand, an adversarial relationship to the state may mobilize public opinion and social movements, but it is a high-risk strategy. The closer to the state, the more the cause lawyer will be compelled to moderate the cause and compromise his or her objectives.

3.2 Resources Of Cause Lawyers

Cause lawyers must often rely on resources quite different from those available to the elite or core of the profession. When cause lawyers seek to mobilize, they may be heavily resource-dependent in at least five areas.

(a) Money: since little funding for cause lawyers comes from third world governments, they rely heavily on western governments, development agencies and churches (see Ellman in Sarat and Scheingold 1998);

(b) Media: publicity, including widely distributed articles, books, print and media interviews and stories, even public demonstrations and courts, increases the impact of otherwise isolated cause lawyers (see Bisharat in Sarat and Scheingold 1998);

(c) External validation: in Third World countries, funding by international foundations, partnerships with international non-government organizations (INGOs), and recognition by distinguished professional bodies, cannot be underestimated;

(d) Professional solidarity: where cause lawyers can ally with professional legal elites or law schools, they can obtain sponsorship, protection, and legitimation at the local level; and

(e) Churches: in some countries, such as Brazil during the military regime of the 1970s and 1980s (see Meili in Sarat and Scheingold 1998), the church and its human rights centers offer institutional solidarity to cause lawyers (Halliday 1999).

The cause lawyering perspective also perceives an ambivalent relationship with globalization.

‘For cause lawyers … globalization and state transformation may be a mixed blessing. In some contexts it may help to provide a political structure wherein minimal rights claims and legal defenses against abuses of state power become meaningful. In other contexts, it may erode support for the kinds of social changes which these lawyers, and the movements with which they are affiliated, seek to advance’ (Scheingold 2001, p. 384).

4. Conclusion

Although they have quite different theoretical origins, the two principal approaches to lawyers’ politics show some convergence. Political lawyers have been studied more in the past and cause lawyers more in the present, but in fact both can be found in every period. In both cases, three questions are central: how to explain the relationships between political orientations and lawyers’ involvement; how to understand the collective construction of a defense or a cause; and how to produce collective action that will change institutional rules. The main difference between political and cause lawyers lies in the conditions which facilitate or hinder the sharing of a common political vision. Cause lawyers are usually individuals or groups defending a specific case in the context of an indifferent or hostile profession. If cause lawyering is very much a creature of, and a contributor to, legal–liberal forms of democracy, cause lawyers do so as a deviant strain within the legal profession and by making appeals for support of their cause outside the profession. By contrast, political lawyering is the expression of a common orientation of lawyers and therefore, through individual causes, it deals directly with other collective actors, especially justice and the state. The more the profession is diversified, the more its political commitment is likely to take the form of the defense of a cause; and the more it is united around some specific issues, the more it is likely to become a political actor. Thus, while the value orientations of these kinds of lawyers’ politics may differ, they exist in creative tension to each other, and together may come to constitute the building and maintenance of liberal politics in the modern world.

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