"The Ambivalence of Litigation: A Criticism of Power" , 13 Jadal (2012)

The Ambivalence of Litigation: A Criticism of Power

Abstract

I. BETWEEN SILENCE AND SPEECH—LAWYERS AND
THE POLITICAL SPHERE
Contrary to numerous other professionals, lawyers are political agents in their daily professional practices. They habitually act through legalistic struggles to alter allocation of public goods (Halliday and Karpik, 1997). Frequently, they either function in politics and/or have meaning in politics (Abel, 1989, 1995; Barzilai, 2005; Eulau
and Sprague, 1964; Feeley and Krislov, 1990, Feeley and Rubin, 2000; Haltom and McCann, 2004; Kagan, 2000; Lev, 2000; Sarat and Scheingold, 1998, 2001; Scheingold, 2004; Scheingold and Sarat, 2004; Shamir and Ziv, 2001). By definition of their profession, lawyers incline to legitimate the nation-state. Their professional ideology presumes crucial public constitutive functions of the legal complex and it relies on perceived state’s abilities to respond rather effectively to public needs and expectations.
When lawyers practise in the legal complex—even those who voice political dissent—they act through the formal legalistic rules as those of jurisdiction, standing, justifiability, adjudication, procedures, rules of ethics and rules of evidence. Hence, both legitimisation and legalisation of the nation-state through lawyers seem to be fundamental and expected functions of lawyers through the legal complex. These two functions of lawyers may even be empowered in liberalism since it advances two foremost normative principles. The first principle is the preference rendered to individual rights over any other type of collective good. The second principle is the state’s ‘neutrality’ and its ability to produce a procedural justice. Presumably, lawyers exercising professional knowledge of the legal complex may have a singular role in advancing these two liberal visions.

However, this chapter does not portray lawyers in the course of conventional
democratic politics. Rather, it is devoted to another aspect concerning lawyers, the legal complex, and political liberalism—it argues that lawyers in a diversity of sociopolitical and economic sites in state and civil society are crucial agents of the formation and signalling the sphere of deliberations in democracies. In other terms, when lawyers talk and furthermore when they are silent in the political sphere, and yet
practise as lawyers, they actually determine the boundaries of the political discourse and political deliberations. Rather than using categories of ‘private lawyers’, ‘government lawyers’ and ‘cause lawyers’, this chapter adds a different and yet a complimentary theoretical vantage point for better understanding the legal complex. This chapter does not look into a specific type of lawyer. Instead it is interested in comprehending the overall population of lawyers, and how the bar has mobilised, effected and affected sociopolitical forces. It focuses not only on the functions
of empowering and challenging legalisation of the state but also on how lawyers are meaningful in shaping the boundaries of political discourse.
More contextually, this chapter also looks into the Israeli experience and in turn it invites a few generalisations that are comparable to other case studies around our globe.

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