FIGHTING FOR POLITICAL FREEDOM: COMPARATIVE STUDIES OF THE LEGAL COMPLEX AND POLITICAL LIBERALISM
by Terence C. Halliday, Lucien Karpik and Malcolm M. Feeley (eds). Oxford and Portland Oregon: Hart Publishing, 2007. 520pp. Hardcover $115.00/£55.00. ISBN: 978841137674. Paper $24.00/£15.00. ISBN: 9781841137681.
Reviewed by Thomas Scheffer and Hyo-Eun Shin, Free University Berlin, Germany. Email: Scheffer [at] law-in-action.org.
The book aims to demonstrate the “affinities between political liberalism and lawyers.” It endeavours to do so not just for the old European nation states and well integrated and established legal cultures. It aspires to find the lawyers’ collective orientations towards political liberalism in democratic and undemocratic states, in Western and Eastern countries, in moderate and authoritarian states, in modern and traditional legal cultures, and so on. This endeavour is clearly ambitious and truly global. As a result, the editors present a comprehensive volume of more than 500 pages and collect 16 case studies from Asia, the Middle East, the Americas and Europe.
The project derives from two sources: the initial one comprises historians and sociologists and their project on lawyers and political liberalism in France, Germany, the UK, and the US; the follow-up project, featured in FIGHTING FOR POLITICAL FREEDOM, comprises contributors from Political Science, Legal History and Sociology and covers various temporal episodes in Korea and Taiwan, China, Hong Kong, Japan, Egypt, Turkey, Israel, Venezuela, Chile, US-America, Spain, and Italy. This broad coverage is truly impressive and refreshing in itself. When are all these countries, traditions, cultures ever brought together not just in one volume, but in a comparative project?
There are more reasons, why this book is remarkable. It reminds the reader of the political relevance of sociology of law and the sociology of profession by covering issues such as Guantánamo and the role of the courts, the war against terrorism and the abolition of rights, authoritarian regimes and the force of law, the legal market and the professions’ societal responsibility. It recalls sociological classics such as Durkheim and Parsons and their ideas of societal integration by responsible and honourable professions. It recalls, moreover, debates between scholars such as Habermas, Luhmann, or Bourdieu on the – normative/deliberative, missing/self-produced, or practical/authoritarian – foundations of positive law.
Practicing law generally involves a normative accord. Lawyers seem to develop a “passion for individual rights.” This is one of the principle findings of the book, and it is considered to have a somewhat universal validity: There is indeed an affinity between advocates and political liberalism. How do the authors demonstrate this affinity despite the amount of case studies, the different [*872] historical periods involved, and the diverse continents and contexts shown? They do so, first of all, by presenting detailed accounts of exactly this broad range. They do so, secondly, by some conceptual ground work, by clarifying what they exactly mean by political liberalism and the legal profession in favour of this liberalism. They do so, thirdly, by discussing the problems and pitfalls of their general claim of affinity. However, what they do not do is present a theoretical or conceptual explanation for the affinity or passion.
The demonstration of lawyers’ affinity or passion for political liberalism runs through a number of compromises and adaptations. Firstly, the authors narrow the scope of political liberalism. The notion mobilised for comparative purposes does not cover democratic or social rights: Generally, it is purported, lawyers do not engage for the latter. Conceiving political liberalism as a legal concept means here, furthermore, to introduce the moderate state in terms of an institutionalised checks-and-balances model, and civil society as a pre-existent watchdog of governance. Secondly, the authors extend the scope of what counts as lawyer. They invent the concept of “legal complex” and allow the various case studies to fit the national professional landscape into the legal complex comprising not just lawyers of bar and bench, but clerks, civil servants, prosecutors, legal academics, and the like. Thus, the comparison gains attentiveness towards the “structural relationships of actors” (p.473) within a legal complex. Thirdly, the authors allow for exceptions. The general rule of affinity remains not just unexplained; rather, it includes exceptions as long as they are accompanied by specific regional conditions: an authoritarian state, fear, a missing civil society, a hostile common sense and press, and so on. The empirical range spans from broad mobilisation, to inconsistent or split liberal positioning, to anti-liberal reflex at certain historical episodes. The exceptions prove the rule.
Legal complex and political liberalism provide the backdrop for global comparison. The wide and narrow conceptualisation allow all thirteen countries to somehow fit the comparative schema. They allow more data to enter the comparison: more fights for freedom, more actors engaging in these fights, more organisational efforts to overcome the deprivation of rights, and so on. All 16 country episodes become (variant) cases of the same theme and pattern. All appear as comments on and versions of the claim of affinity. It is in both, the introduction and in the postscript that the volume’s organizers, Terence C. Halliday, Lucien Karpik and Malcolm M. Feeley, point towards conceptual challenges to delimit the notion of political liberalism in order to fit the variety of contexts and cases. They derive a definition that is minimal: liberalism is reduced to the bare relation of the individual to the state. Lawyers and academics alike seem to align with these first order laws only. However, this specification of political liberalism brings an extra need for explanation: why is there an affinity to “individual laws” and not, for example, to social or political rights (to eat, to work, to vote)? Why is there a passion for the first generation laws and not for the late modernist laws? Are they the closest to their professional identity? Are they simply practical preconditions for their case work and legal representation? Do [*873] lawyers ‘just’ create the basis for their own business to flourish? Or do lawyers develop a certain political consciousness that derives directly or indirectly from their legal work? The authors do not attempt to develop analytical explanations here. In passing, they refer to the belief in justice as a public good that may constitute a main resource for the political commitment of lawyers. They address, in outlines, legal training and practice as means to gain political power through the use of the judicial system, and the notion of representation as a fundamental basis for the legal profession, but do not elaborate on them. Either way, the concept of political liberalism seems to resonate with the legal profession’s idea of freedom and rights; of advocacy inside and outside the legal courts, no matter how one would account for it by means of functional, economic, or habitual explanations.
The authors do not discuss critical approaches to the legal profession. They do not spell out the implications of their assumptions and demonstrations in light of other versions of what lawyers do, or do not do. Close to the lack of engagement with opposing versions – e.g., in the critical or materialist tradition – the authors miss a theoretical dimension of liberalism. Individual rights are a good thing to be protected. This goes without further explanation especially in a political climate that ignores human rights and undermines civil society in the name of the by and large hysterical “war against terror.” It seems insufficient in a wider historical and transnational perspective, where individuals and collectives are deprived of basic rights, not in legal terms, but by economic, social, and physical exclusion. So whose liberalism is at stake here? Is it a theoretical construction, a historical fact, or an insight into a partially shared professional culture? The restricted notion of political liberalism reflects a concept that is without precedence in the sociological or political literature. The restricted notion reflects the core of historical case studies. It, more than anything else, reflects the notion of liberalism that is performed by the lawyers themselves. It seems, first of all, the notion of lawyers’ liberalism.
But how does all this correspond to the case studies? Do we find explanation in the descriptions and analyses? We briefly discuss three of the sixteen case studies without claiming that they are representative for the full range of studies. However, despite their well-researched presentation and their extraordinary rich foundation, these three studies may lead towards a general call for explanation.
Tom Ginsburg, in his sociohistorical analysis of liberal transformations in South Korea and Taiwan from the 1970s onwards (Chapter 2), construes the Northeast Asian legal complex as an ideal type on grounds of structural similarities regarding the interrelations between legal institutions in Japan, Korea and Taiwan due to their shared colonial past. It is the phenomenon of post-WWII authoritarian, administrative states imbued in illiberal capitalism, of bureaucratic law regimes with professional, semi-autonomous judiciaries and small private legal professions, developing into democracies with lawyer-presidents and growing political influence by legal actors that Ginsburg considers as [*874] paradigmatic for the proclivity of lawyers towards political liberalism. In this vein, the editors categorise these two cases as success stories in the empirical spectrum collected here: the legal complex as a whole mobilises for all the three aspects of political liberalism as defined in the book: “legal institutions, the legal rights inherent in civil citizenship, and the engagement of lawyers in civil society” (p.11). Ginsburg discusses several exogenous and endogenous factors that promoted this development: expansion of the private bar; economic growth and the emergence of a vivid civil society (despite or because of strong political repression); professional training of lawyers abroad, especially in the US, which inspired a strategy of litigation by lawyer-led NGOs and alternative bar associations; the institution of a liberal Constitutional Court in South Korea or a shift in jurisdiction of the Council of Grand Justices in Taiwan. He also carefully elaborates the different routes “liberal lawyers” have chosen: political party organisation in Taiwan versus broad civil society mobilisation outside party politics in South Korea. However, his account lacks clarification as to the special relation between lawyers and political liberalism; rather, it emerges as an ex post narrative which exemplifies how liberal-orientated lawyers achieved strong political influence under contingent circumstances. Nevertheless, the strength of his contribution lies in highlighting the role of an overarching democratisation movement in both countries which renders lawyers not as the only, but as one of various actors forming alliances for social change. Furthermore: “In a very real sense, the private legal profession emerged along with democracy in both countries” (p.61). However, this interrelation is not maintained by the editors who bracket democratisation from political liberalism. Thus, on the one hand these two cases are afforded a paradigmatic character, while on the other hand they are deemed “the two exceptions” (p.466) insofar as lawyers do engage for a far broader agenda comprising more than individual rights.
Richard L. Abel (Chapter 12) demonstrates another exception, fuelled by the aforementioned “war against terror.” Abel tracks down in detail how the legal advisers in the US government pushed the limits of what still counts as lawful in order to provide the president with all the powers necessary to respond to the terrorist threat. Fundamental rights were misrepresented by government lawyers against the broad protest from a surprisingly powerless legal complex. Abel’s case study gives an account of legal rationales that were utilized by academics, defense lawyers, and legal associations, as to why the war against terror went out of control and undermined the constitutional foundation of the United States. However, since the article was completed, and actually until today, no prisoner was released from Guantánamo, no deprivation of basic rights was corrected, no unlawful act cured. The legal complex failed in a seemingly fully developed legal culture, the prototype of legal liberalism. Abel explains failure of historic dimension with common sense and public opinion, with lack of civility and collective shock that followed the twin-tower disaster. His conclusion presents a split legal complex, or more so, an antagonist complex that perhaps never was united in the first place: “Faced with a determined executive and [*875] a complicit or complacent legislature in the world’s only superpower the rest of the legal complex – lawyers, legal academics, professional associations, judges and NGOs – could do little to protect political liberalism” (p.398). The US seemed to enter a dark period of anti-liberalism that is not over yet and that continues to haunt the world order.
Are these the only atypical cases? Gad Barzilai’s case study on the ambivalent language of lawyers in Israel (Chapter 8), for example, seems to indicate otherwise. As Lucien Karpik, in the Postscript, also quotes from Barzilai’s contribution, in Israel attorneys have indeed fought for more than just individual rights, especially through litigation: for social justice, for more transparency and against government corruption, for minority and gender rights amongst others; a belief in individual rights was the basis for a multifold engagement of lawyers as political actors. Moreover, Barzilai, after an insightful elaboration on the strong link between economic liberalism and growth of the legal profession based on quantitative data, emphasises the notion of lawyers as an ambivalent profession; in the nation state of Israel, where illiberal characteristics remain from the days of state formation and land confiscation, the various actors within the legal complex both expressively and silently reinforce the status quo, and the “liberal talk” does so as well. It is this concept of talk and silence that leads him to understand lawyers as political actors in any case, since they delimit, under conditions of decentralised and split power foci, the space of discourse open for public deliberation. While, in general, since the 1980s, lawyers in Israel seem to execute silence on issues pertaining to national security, small groups of lawyers such as Adalah break that silence in a fight for liberalism – once again, this liberalism is far more extensive than the restricted notion of political liberalism put forward by the editors. At the same time, their strategy of litigation calls on courts as embodiments of state authority, thus reinforcing the existing distribution of power and limiting the potential for a more radical social change. Barzilai’s achievement lies in his attentiveness to the ambivalent ways in which liberalism plays out among lawyers and in which lawyers may be proponents of liberalism on selected issues only.
Can this selectivity be sufficiently explained by “fear of destruction” (p.26), by a hostile public or a lack of autonomy within the legal complex, be it from the executive or senior lawyers, as the editors tentatively argue? Is the perceived immanent threat to national security inhibiting further liberal transformations for the moment? Here again, the cases of the South Korea and Taiwan – interestingly, Barzilai refers repeatedly to these two countries – seem to provide examples for an alternative scenario: as Ginsburg contends, in Taiwan and South Korea issues of national security and state sovereignty have been addressed by legal actors, despite the fact that both countries face ‘hostile’ neighbours; initially, small fractions of the legal complex have engaged themselves amidst hostility and repression, and despite a strongly hierarchical system within the bar and judiciary.
One general explanation for the ‘exceptions’ may bring us back to some careful explanations for the [*876] affinity-argument. Perhaps, both – hostility and affinity for liberal/individual rights – are two sides of the same coin. Perhaps, both positions of the legal complex are grounded in the conditions of possibility of this complex to exist in the first place. Lawyers’ ability to defend and construct cases not only requires a system of individual rights, but also a stable state in the first place. This dependency is first felt within the administration, but it is not restricted to it. To put simply: the “monopolisation of violence” (Weber) precedes governance, while governance precedes the force of law. Grounding the law in a violent act is far from being a new insight. It is just a reminder that, also seemingly anti-liberal by nature, the critical tradition encompassing Marx, Nietzsche or Foucault, provides important stimulants for an explanatory debate for both rule and exception in the lawyers’ fight for liberal rights. This also indicates a need for further explorations into the ambivalent ways of “how political liberalism and the legal complex over the longue durée mutually transform each other” (p.7). Spelling out presuppositions on the morality or practical logics of legal professions could shed additional light into remaining questions of who (why not others?) mobilises against what, to what ends and with what implications. On an epistemological or methodological level, discussions of the possibility and limitations of global comparisons involving various temporal periods could further enrich the debate over the universal applicability of the proposed findings. Another reading of the many contributions could, for example, rather than ‘find’ the restricted conception of political liberalism to be at work in various countries worldwide, elaborate on the meaning and significance of empirical variations and modifications of a theme (here: political liberalism) that look ‘the same’ only at first sight. These are careful articulations of possibilities to amplify further the highly valuable contribution of this book, which reminds us of the importance of legal actors in political fights over a whole spectrum of issues. With its comprehensive presentation of variant modes of action, both in terms of orientation and actors’ constellations within and outside the legal complex, it also reminds us of the precarious character of institutions of political liberalism. The lack of explanation is, after all, unavoidable when assembling all these countries, cultures and periods. It, moreover, invites, rather than disinvites, new research into this fascinating overlap of law and politics.
© Copyright 2008 by the authors, Thomas Scheffer and Hyo-Eun Shin.
Labels: Vol. 18 No. 10