Civil Society and Professions: US Civic and Politicized Lawyering

Civic and politicized lawyering

The sociology of professions and sociology of law have generated only modest knowledge about lawyers and their civic or political engagements, not to mention anti-state discourses or stands (but see Shapiro, 2002). In the sociology of law (Banakar & Travers, 2005; Banakar, 2009), the scant British, Scandinavian and US research on lawyers has paid much empirical attention to the least prestigious and worst paid end of the profession—criminal lawyers—and their relationship to their clients (for exceptions, see Dezalay & Garth, 2010; Lange, 2005; Pierce, 1995, 2012; Paterson & Teubner, 2005; Scheffer, Hannken-Illjes & Kozin, 2010; Shapiro, 2002) (see endnote 3).

An interdisciplinary survey of literature shows that an American duo, Sarat and Scheingold—a law professor and a political scientist—wrote their own volume and edited several collected volumes on what they labeled cause and transgressive lawyers who consistently take on controversial issues, such as labour rights, racism, poverty, environment, gender equality, sexual violence, refugee rights, etc., often at considerable risk to their income, professional reputation, and professional career.

The text that follows will lean heavily on their edited volumes to illustrate some of the points made earlier. Also relevant, although not drawn upon here, is a French-US cooperation, involving Karpik and Halliday (2011), and Halliday, Karpik and Feeley (2007)—a French sociologist, a law professor with a degree also in sociology, and a political policy analyst—which resulted in a comprehensive edited volume focusing on the contribution of the legal profession to establishing and defending liberal democracies (see endnote 4). In France, a historian, Liora Israel (2009), edited a special issue of a journal focusing on professionals and their public engagement. Finally, early in 2018 a lawyer-organized symposium entitled, “The Use of Law by Social Movements and Civil Society”, with around 100 participants, took place in Brussels to investigate the interface between social movements and lawyers, law, and judicial case reviews. These examples demonstrate that when exploring the various aspects of lawyers’ professional life, adopting a broad perspective including their civic and political engagements makes good sense.

Sarat and Scheingold (1998, 2006) offer rich material about US lawyers and their civic and political engagements. They seek to define and to elaborate the contrast between the “conventional” legal profession and cause lawyers, investigating how cause lawyers attenuate and re-shape boundaries between professional and political fields of action, despite their being subject to professional, legal and political constraints.

Before I turn to cause and transgressive US lawyers, let me note that they, although certainly numerous, constitute a minority among lawyers. Conventional lawyers represent citizens or members of the civil society vis-à-vis one another or in relation to the state or business. They work for a fee (the US differs from many European countries in that it features numerous big corporations specializing solely in providing legal services to others, see Pierce, 1995; Shapiro, 2002).

Another group of lawyers plays an important role in state administration or in the judiciary. These are public officials or government employees who are salaried. So-called “corporate lawyers” are employed by private enterprises to keep abreast of new legal developments, monitor compliance with laws and regulations, but they are also employed to discover and use loopholes in laws and to represent their firm in court and other institutional contexts when necessary. US lawyers may be employed by particularly venal, corrupt or discriminating firms and be put under pressure to follow their dictates, but such firms do not exhaust the job universe (Pierce, 1995, 2012; Shapiro, 2002). US lawyers have, comparatively speaking, a great deal of leeway in setting up their own professional associations and organizations. These provide them with additional employment opportunities. US lawyers are also free to work for non-governmental and not-for-profit organizations. This implies that civil society constitutes their fourth type of employment opportunity. It is an empirical question, which cannot be pursued here whether lawyers in other liberal democracies are distributed between similar employment sectors, how these weigh in relationship to each other and what roles can be played within and between them, and whether lawyers are similarly free and willing to pursue civic and political causes.

In effect, lawyers are found playing multiple roles within and in relationship to civil society. In their professional capacity as lawyers they may mediate, discipline, administer bio-politics in relationship to their various clients. They might also represent (conservative or transgressive) causes in courts. In addition, in their professional capacity, they might act as the consultants, founders, or employees of civil society organizations related or unrelated to their own profession. Finally, as members of their professional associations or initiatives, they might be called upon to engage with specific issues, other civil society organizations or initiatives.

Work forms, client referrals, and finances

Political activism/transgressive lawyering affects the work form itself. Lawyers’ collectives, feminist or minority firms rely on recruitment practices excluding co-workers and clients not compatible with their aims. They strive for a more democratic relationship with their clients. Some have equal pay and equal work as an ideal, and seek to politicize, de-commodify and socialize legal practice (Sarat & Scheingold, 1998, p. 7-8). In the US activists pursue work with “public interest” law offices (funded by the state or foundations) or subsidized university-affiliated or neighbourhood “law clinics” servicing discriminated or poor population groups.

Sources of referrals tell whether a firm has a civic society as its important reference point. Such referrals may come from minority communities, churches, advocacy organizations, think-tanks, foundations, networks of like-minded lawyers or public service agencies to name a few (e.g. Kilwein, 1998, p. 189). Similarly, civic and political activism can be surmised by the sources of financing. Law firms are financed by client fees, but in the case of cause lawyers also – alone or in combination—by state funds, obligatory court/settlement fees, minority communities, churches, voluntary lawyers’ or special cause associations, advocacy organizations, consortia, and foundations. These sources of funding bring the point home that civic or political activism of law firms is often predicated on its symbiotic relationship with the civil society. Cause and transgressive lawyers are also concerned with how they can lower the financial burden of their unprivileged clients: for example, they take on some “regular” cases to be able to balance their books when they offer pro bono services or introduce income-based fees to their poorer clients.

Substantive focus

To distinguish conventional from transgressive lawyering for the US Sheingold and Bloom (1998, p. 213) proposed a lawyering continuum. At its opposite poles, we find pro bono work and radical-critical, transgressive legal work as illustrated by Figure 1:

Figure 1

Lawyering continuum.

In their view, nearly all law firms provide occasional pro-bono service following professional ideals. Even corporate law firms, seeking prestige, encourage their employees to do a bit of pro bono work. However, pro bono work per se is not transgressive since it only alleviates individual needs. In the US, civil liberties and civil rights cases cannot be seen as transgressive as defending or expanding liberties and rights is part and parcel of honouring the Bill of Rights. Such cases are raison d’ȇtre for such professional organizations as the American Civil Liberties Union, but even some conventional law firms occasionally take on such cases. Only when these challenge the established power structures and vested interests, can one speak of transgressive lawyering. Similarly, policy contestation is only transgressive when it challenges the power holders to achieve “public good” and mobilizes citizens or establishes advocacy groups, crossing the boundaries of conventional lawyering. Truly transgressive lawyers wish to transform their societies and join hands with social movements pursuing radical change (Scheingold & Bloom, 1998, p. 215). Usually such lawyers become involved in specific areas of law to achieve racial justice, assert feminist or minority rights or they engage in monitoring and challenging the state and the corporations, often at a considerable financial risk to their firms (McCann & Dudas, 2006; Menkel-Meadow, 1998, p. 42-43, 50; Sarat & Scheingold, 1998, p. 9; Trubek & Kransberger 1998; Scheingold, 1998, p. 128; Sarat & Scheingold, 2006).

History and forms of professional engagements

Research on the history of a profession’s civic and political engagements should become a research area in its own right (see Sarat & Scheingold, 1998, 2006). A historical perspective highlights how changes in the context of professional action influence the forms these engagements take. The present sketch pinpoints that in the US the political spectrum moved from the left to the right by the 1980s, making it much more difficult to engage in cause or transgressive lawyering. During this time, research and advisory councils or legal defence or law research centres gave way to networks and consortia. Their very names trumpet their political intent, speaking of political activism in pursuit of civil rights, equality, environmental and consumer protection, civic and minority rights. In the 1980s, in contrast, profession-led counter-initiatives to cause and transgressive lawyering entered the centre stage.

Starting with the late 1960s, when the political context allowed for many successful law reforms, lawyers and law students set up firms and organizations on special issues:

Once law reforms and impact litigation advancing redistributive, identity or public interest politics became less likely in the conservative-repressive 1980s and 1990s:

Since the 1980s cause lawyers have more often pursued regular court cases on behalf of groups affected by poverty and/or intersectional discrimination (combining “race”, gender, age, sexual orientation, etc.). They have focused on client empowerment at micro-sites of power—such as the family, the workplace, schools, social and medical services—thus accepting less popular and less profitable legal activities. Yet specific types of rights-activism continued on issues such as same-sex marriage, disabilities, Native American rights, environmental justice, living wages and AIDS prevention (McCann & Dudas, 2006, p.54). Some cause lawyers have heeded the shift of funds to human rights and have become involved with a number of (T)NGOs to pursue old and new causes from this perspective. Non-profit human rights organizations mushroomed financed by well-known foundations (e.g. Ford Foundation) and citizen donations. For lawyers, Amnesty International, the US Human Rights Network, Women´s Institute for Leadership Development for Human Rights (WILD), the Indian Law Resource Center, and the Center for Constitutional Rights have become both a source of employment and referrals (McCann & Dudas, 2006, p.54).

In a parallel development beginning in the 1980s, conservative counter-mobilization became noticeable among lawyers who organized themselves in the Manhattan Institute, the Pacific Legal Foundation and the Federalist Society (McCann & Dudas, 2006, p.48-50). Conservative cause lawyers (just as conservative churches and fundamentalist evangelical groups) imitated organizational and discursive strategies of their leftist, identity ascertaining, and public interest lawyers. They relied on the language of rights. They declared to defend American values when advocating, law and order, property rights, limited government, the abolition of tort law, right to life, tobacco products, handguns, etc., and established lawyer-staffed Moral Majority Legal Defense Foundation and the Center for Law and Religious Freedom (den Dulk, 2006).

Tensions between lawyers and civil society

At best, lawyers’ political activism can spearhead or keep alive an issue, even in the absence of a social movement or citizen initiatives. When a movement emerges, politicized lawyers and lawyers´ organizations can help create a collective, empowering sense of grievance and entitlement to rights, put issues and claims in legal terms, and advise about alternative or complementary strategies (McCann & Dudas, 2006). They can also provide support in confrontations and negotiations with the opponent, use litigation to dramatize abuses while allocating blame, win media attention for the issue, and, if there are such, execute legal outcomes thus increasing a sense of overall empowerment. However, politicized lawyers and their organizations can pre-empt, deflect or marginalize citizen initiatives or social movements while acting on their own vision of what is or should be a good society. This was the case with the National Association for the Advancement of the Colored People (NAACP) Legal Defense and Education Fund, Inc. As an elite lawyers´ organization, it commanded considerable resources which enabled it to gain much legal and public attention for the issues on which it set priority. NAACP was a movement of lawyers who believed in law, courts and the legal pursuit of rights as the only or main means of achieving social change. An exemplary, it inspired a plethora of similar lawyers’ organizations on various—environmental, gay and lesbian, poverty and other—issues. After 1961 it acted under the leadership of a new director who had managed the successful legal campaign which resulted in a de-segregation (known as the “Brown”) court decision. NAACP vehemently rejected direct action, seeing it as an illegitimate attack on the rule of law and as detrimental to the pioneering legal campaign it waged against racism, segregation and for equality. In contrast, the Civic Rights Movement and the lawyer who led Student Nonviolent Coordinating Committee (SNCC), after experiencing for several years how old and new legal rights were being disregarded and violated in the South, had no more trust in the legal procedure (Hilbink, 2006, p.60-62). In the 1960s, at the height of the Civil Rights Movement NAACP caused a great deal of anger and resentment among civil rights activists when it openly condemned direct action at a time when the letter of law was daily and massively violated by the very authorities which were supposed to implement it (for a similar constellation, see Levitsky, 2006, p.145,155).

Conclusion

This text showed how every day and more sporadic activities of professionals have been studied to include those shaped by their involvement with key social issues of the day. Specifically for the cause and transgressive lawyers, it pinpointed that the engagement with the issues of the day has shaped their everyday work: its forms, recruitment and litigation strategies, and financing sources. Sarat and Scheingold’s edited volumes also demonstrated that US lawyers concerned with controversial issues of the day have employed a variety of innovative—collegial, associational, citizen—and institution-building—strategies to be able to generate new specialized knowledge, offer services to the unprivileged groups or mobilize others within and beyond their profession on the issue thereby pitting them against the state or the vested interest. The concerns and strategies of lawyers pulled them into the very midst of civil society and its actors. Their organizing and campaigning, when successful, shifted the substantive concerns and the boundaries not just of their own profession, but—correspondingly—also of the civil society, the state, and the market.

As the text showed, sometimes the civil society actors appreciate the advice and strategies advocated by lawyers on an issue, even when these re-interpret or circumvent it to come close to the desired results, while in other cases they react with criticism or even moral outrage at what they perceive as presumptuous and wrong-headed interpretations of the issue and the appropriate ways to tackle it. It also referred to conservative civil society organizations learning from the strategies of the cause or transgressive lawyers how to organize their counter-mobilization. All this could be shown for the US lawyers, but what about other professions and locations?

To realize that professional idealistic engagement is not an isolated phenomenon one only needs to call to mind Médecins Sans Frontières (1971, see MSF.org), and its imitators from other professions, such as Reporters without Borders (1985, see rsf.org), Lawyers without Borders (2000, see lawyerswithoutborders.org), Engineers without Borders (2002, see ewb-international.com), Chemists without Borders (2004, see chemistswithoutborders.org), Sociologists without Borders (2011, see sociologossinfronteras.org), or Biologists without Borders (2015, see biologistswithoutborders.org). Single professionals, groups within a profession, and professional bodies set up transnational non-government organizations (TNGOs) to offer their services to those dramatically deprived of access to fundamental natural resources, basic information and specialized knowledge or affected by deep poverty, illnesses and abuses of their rights.

Brint and Levy (2002) provide an overview of US professional organizations and academic disciplines associations, including the American Chemical Society, the American Institute of Architects, the American Society of Mechanical Engineers, the American Historical Association and the Modern Language Association and their fluctuating civic engagements between 1979/1900-1995. Dagi (1988, p.53-55) lists some policy areas seemingly distant from the key concerns of the medical profession in which it has become involved, carried by the medical paradigms implying or calling for activism: Physicians for Social Responsibility (founded in Boston in 1961) oppose nuclear proliferation,e while the medical profession has much to say about occupational health, food inspection, and environmental protection.

Neoliberal economists have pushed for their scientific agenda far beyond the confines of their scientific discipline and their respective nation-states. They not only engaged in teaching or publishing or departmental takeovers to promote the idea that individual freedom can only be achieved under the conditions of the free market, but they also developed a four-pronged strategy for gaining academic and political elite support for these ideas. They established the Mont Pelerin Society (1947) as well as many Think Tanks, research centres, business foundations, roundtables, initiatives and lobbies to further develop, discuss and propagate their views (Harvey, 2005, p. 43-44; Ptak, 2007, p.75-86). In this manner, they contributed to the right-wing turn of the civil society and politics in the closing decades of the past century.

In the introduction, I proposed that engaging with issues of the day can lead to the expansion of professional knowledge. For about 100 years, neoliberal economists have been deeply concerned about defending individual freedom against the state, whether in planned or market economies. They developed their scientific arguments and then moved to inhabit the elite regions of the civil society and politics to implement their visions.

The case of the US chapter of the Sociologists without Borders (SWB) illustrates the opposite movement. The SWB, established as an NGO-chapter in Madrid, Spain in 2001, is concerned with global justice and focuses on human rights violations. It also seeks to reduce power and resource asymmetries between the global North and the global South. Once a SWB’s chapter was established in the early 2000s, the question of how sociologists can contribute emerged. In contrast to doctors or engineers, it is not self-evident how their expertise on human rights violations or inequality and gender or racialized discrimination can counteract these (Golash-Boza, 2012). They, therefore, set up a journal entitled, “Societies without Borders”, a Human Rights section within the American Sociological Association and also an international Think Tank. Moreover, awards went to scholars who advanced research on SWB-related questions. The key point here is that what started as a concern about human rights and global North-South power asymmetries, resulted in setting up an NGO-chapter. Its initiators then engaged in many professional activities with the purpose of generating new specialized knowledge about what sociologists without borders could do and societies without borders could stand for. As this case signals (see also Henriksen & Seabrooke, 2015), civil society constitutes a fourth source of worldviews and ethics, apart from the state, the market, and the professions. Not the least for this reason, as sociologists of professions we should become cognizant of it and its various entanglements with professions and their manifold pursuits.

A research agenda exploring professions and their organizational initiatives could disclose the ways in which professions contribute (or fail to contribute) to the general welfare and democratic life and thus fill the research gap Parsons created according to his critics when theorizing about the integrative-mediating role of professions in society (see overview in Sciulli, 2005, p. 916-918). It would also hark back to the research programs of historians of professions who were centrally concerned with their positioning in the power struggles between the state and the citizenry over time (see the diverse contributions in Burrage & Torstendahl 1990).

Finally, such a research agenda would dovetail with research on civil society which investigates, for instance, the extent to which and the ways in which civil society organizations, in this case, professional bodies and associations, manage to aid in (or hinder) liberating citizens from the clutches of their (absolutist, totalitarian or authoritarian) states and, not to be forgotten, capitalist forces or out-of-date value and normative constraints. It would call for investigating how professionals and their organizations expand (or curtail) citizen and minority rights in liberal democracies and develop critical (rather than supportive) discourses and activities directed at the governance regimes (alternatively: disciplinary regimes). Such regimes purport to define a given phenomenon as a problem necessitating a solution, bestow authority on and define the formal relationships between the actors to be involved in problem-solving, and specify the objects and the subjects (read: population groups) which the governance regime is to monitor, regulate, care for and, if necessary and possible, discipline (see Burns & Stöhr, 2011; Foucault, 1965; Freidson, 2001, p.182-196; Furedi 2006; Goldstein, 1984, p.181-183). Various citizen initiatives, professions that are to be regulated as well as professional associations claiming expertise in the regulatory area are often found among the critics of such governance regimes, and some manage to modify them and be included among the regulatory actors. Under what conditions they develop a critical stand and manage to assert it, and what happens with this critical stand once they are included among the regulatory actors are all research questions worthy of pursuit.

Endnotes

Acknowledgements

I would like to thank Malin Åkerström, Tom Burns, Micha Fiedlschuster and Katarina Ristić as well as three reviewers and the editor for their contribution to this article. Special thanks to the first and third reviewer, and Tom Burns. Mike Saks graciously sent me his article. I am very grateful to Lisa Flower for going through my English twice. A project grant of the Volkswagen Foundation (2015-2018) made for preseverance.