The role of lawyers in producing the rule of law: Some critical reflections

Theoretical Inquiries in Law

Volumn 11, Issue 1, 2010, Pages

  Gordon, Robert W ^a  

^a NONE

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EID: 77649140391     PISSN: None     EISSN: 15653404     Source Type: Journal    
DOI: 10.2202/1565-3404.1247     Document Type: Article

References (88)

1. See generally BRIAN TAMANAHA, ONTHE RULEOF LAW: HISTORY, POLITICS, THEORY 26-91 (2004) (providing a lucid inventory of the various common meanings of the phrase).
2. In Paul Bremer's Iraq, to take an extreme example of misplaced priorities, the Coalition Provisional Authority felt it much more urgent to privatize industries, write a securities law, and substitute a flat for a progressive tax than to retain state police and military forces capable of containing looting and sectarian killing. See RAJIV CHANDRASEKARAN, IMPERIAL LIFE IN THE EMERALD CITY (2006).
3. For valiant and useful attempts to sort out the various applied versions of the Rule of Law see for example, TAMANAHA, supra note 1;
4. Richard H. Fallon, The Rule of Law as a Concept in International Discourse, 97 COLUM. L. REV. 1 (1997);
5. Rachel Kleinfeld, Competing Definitions of the Rule of Law , in PROMOTING THE RULE OF LAW ABROAD: IN SEARCH OF KNOWLEDGE 31 (Thomas Carothers ed., 2006);
6. Alvaro Santos, The World Bank's Uses of the "Rule of Law" Promise in Economic Development, in THE NEW LAW AND ECONOMIC DEVELOPMENT: A CRITICAL APPRAISAL 253 (David M. Trubek & Alvaro Santos eds., 2006);
7. Thomas C. Heller, An Immodest Postscript, in BEYOND COMMON KNOWLEDGE: EMPIRICAL APPROACHES TO THE RULE OF LAW 382 (Erik G. Jensen & Thomas C. Heller eds., 2003). William Whitford argues for a minimalist use of the term (establishment of institutions that make good on the political commitment of governments to act in accordance with pre-established rules and standards). See William C. Whitford, The Rule of Law, 2000 WIS. L. REV. 723.
8. The rule of law remains principally about improving the quantity (number and productivity) and quality (autonomy, pay scales, skills) of a largely existing court system under the partially articulated theory that well-functioning legal institutions are essential to markets and democracy, and that these, in turn, define the possibilities of successful development.
9. Heller, supra note 3, at 384.
10. This was the conclusion of one of the best studies of the 1960s "Rule of Law" projects: JAMES GARDNER, LEGAL IMPERIALISM (1980).
11. see David M. Trubek, The "Rule of Law" in Development Assistance: Past, Present and Future, in THE NEW LAW AND ECONOMIC DEVELOPMENT: A CRITICAL APPRAISAL, supra note 3, at 74, for a concise sardonic account of the 1960s projects and their successors.
12. See generally David Kennedy, The "Rule of Law," Political Choices, and Development Common Sense, in THE NEW LAW AND ECONOMIC DEVELOPMENT: A CRITICAL APPRAISAL, supra note 3, at 95, 139-50.
13. THE INT'L BANK FOR RECONSTRUCTION & DEV., WORLD BANK, ECONOMIC GROWTH IN THE 1990s: LEARNING FROM A DECADE OF REFORM (2005) (emphasis added).
14. These disappointments have not stopped or slowed the funding of many new projects. As observers have pointed out, the advantage of the "Rule of Law" rubric is that it promises something to many different constituencies, and that as its aims grow broader it becomes harder to assess their achievement or failure. See, e.g., Santos, supra note 3, at 278-95.
15. See the debate between Fareed Zakaria and Thomas Carothers: FAREED ZAKARIA, THE FUTURE OF FREEDOM: ILLIBERAL DEMOCRACY AT HOME AND ABROAD (2003) (arguing that developing or transitional societies do well to avoid rushing to adopt democratic politics; they should start with autocratic government, and gradually introduce market reforms and the rule of law);
16. THOMAS CAROTHERS, Zakaria's Complaint, in CRITICAL MISSION: ESSAYS ON DEMOCRACY PROMOTION 219 (2004) (arguing that Zakaria's model fits some historical and current societies but not many others where democratic demands have been preconditions for economic development and legal reform).
17. See, e.g., Frank Upham, Mythmaking in the Rule of Law Orthodoxy, in PROMOTING THE RULE OF LAW ABROAD: IN SEARCH OF KNOWLEDGE, supra note 3, at 75.
18. See the many contributions of Avner Greif, for example, Avner Greif, Commitment, Coercion and Markets: The Nature and Dynamics of Institutions Supporting Exchange, in HANDBOOK OF NEW INSTITUTIONAL ECONOMICS 727 (Claude Ménard & Mary M. Shirley eds., 2005).
19. See, e.g., John Ohnesorge, Developing Development Theory: Law and Development Orthodoxies and the Northeast Asian Experience, 28 U. PA. J. INT'L ECON. L. 220 (2008).
20. See, e.g., JANE STROMSETH, DAVID WIPPMAN & ROSA BROOKS, CAN MIGHT MAKE RIGHT? BUILDING THE RULE OF LAW AFTER MILITARY INTERVENTIONS (2006); LAW AND GLOBALIZATION FROM BELOW: TOWARDS A COSMOPOLITAN LEGALITY (Boaventura de Sousa Santos & César A. Rodríguez-Garavito eds., 2005).
21. For comparative projects that perceive the problem but go ahead on the basis of this assumption see for example, LAWYERS IN SOCIETY (Richard L. Abel & Philip S.C. Lewis eds., 1988, 1989 & 1995) (four volumes);
22. FIGHTING FOR POLITICAL FREEDOM: COMPARATIVE STUDIES OF THE LEGAL COMPLEX AND POLITICAL LIBERALISM (Terence C. Halliday, Lucien Karpik & Malcolm M. Feeley eds., 2007) (in which the "legal complex" includes judges, private lawyers, public lawyers like prosecutors and legal academics).
23. See generally Gillian Hadfield, Don't Forget the Lawyers, 56 DEPAUL L. REV. 401 (2007).
24. Richard L. Abel's impressive body of work massively documents this view of the profession. See, e.g., RICHARD L. ABEL, AMERICAN LAWYERS (1989);
25. RICHARD L. ABEL, THE LEGAL PROFESSION IN ENGLAND AND WALES (1988).
26. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 263-65 (J.P. Mayer & Max Lerner eds., George Lawrence trans., Harper and Row 1966) (1835).
27. E.P. THOMPSON, WHIGS AND HUNTERS: THE ORIGINSOFTHE BLACK ACT 259 passim (Pantheon Books 1975).
28. See J.P.S. McLaren, Nuisance Law and the Industrial Revolution: Some Lessons from Social History, 3 OXFORD J. LEGAL STUD. 155 (1983).
29. See generally HARRY ARTHURS, WITHOUT THE LAW: ADMINISTRATIVE JUSTICE AND LEGAL PLURALISM IN NINETEENTH CENTURY ENGLAND (1985).
30. Marc Galanter & Jaynath K. Krishnan, Debased Informalism: Lok Adalats and Legal Rights in Modern India, in BEYOND COMMON KNOWLEDGE: EMPIRICAL APPROACHES TO THE RULE OF LAW, supra note 3, at 96, 100-01.
31. See generally DEBORAH L. RHODE, ACCESS TO JUSTICE (2004).
32. Joaquim Falcão, Lawyers in Brazil, in LAWYERS IN SOCIETY, VOLUME 2: THE CIVIL LAW WORLD 400, 402 (Richard L. Abel & Philip S. C. Lewis eds., 1988).
33. For many examples taken from lawyers' gaming of UK company and tax law rules, see Doreen McBarnet & Christopher Whelan, The Elusive Spirit of the Law: Formalism and the Struggle for Legal Control, 54 MOD. L. REV. 848 (1991).
34. Robert Cover, Violence and the Word, 95 YALE L.J. 1601 (1986).
35. Lawfare can be limited or it can reduce people to "bare life" - in Zimbabwe, it has mutated into a deadly necropolitics with a rising body count . . . but it always seeks to launder brute power in a wash of legitimacy, ethics, propriety. Sometimes it is put to work, as it was in many colonial contexts, to make new sorts of human subjects; some-times it is the vehicle by which oligarchies seize the sinews of state to further their econo-mic ends; sometimes it is a weapon of the weak, turning authority back on itself by commissioning the sanction of the court to make claims for resources, recognition, voice, integrity, sovereignty. But by and large, as we have said, it is neither the weak nor the meek nor the marginal who predominate in such things. It is those equipped to play most potently inside the dialectic of law and disorder. . . . The court has become a utopic institutional site to which human agency may turn for a medium in which to achieve its ends - albeit sometimes in vain, given the disproportion everywhere between populist expectations of legal remedy and, law-oriented nongovernmental organizations notwithstanding, access to its means.
36. John L. Comaroff & Jean Comaroff, Introduction to LAW AND DISORDER IN THE POSTCOLONY 1, 31-33 (John L. Comaroff & Jean Comaroff eds., 2006).
37. RUDOLF VON GNEIST, DIE FREIE ADVOCATUR. DIE ERSTE FORDERUNG ALLER JUSTIZREFORM IN PREUSSEN 49 (Berlin, J. Springer 1867).
38. JOHN LEUBSDORF, MAN IN HIS ORIGINAL DIGNITY: LEGAL ETHICS IN FRANCE (2001).
39. See LAURO MARTINES, LAWYERS AND STATECRAFT IN RENAISSANCE FLORENCE 387-448 (1968).
40. ROGELIO PÉREZ-PERDOMO, LATIN AMERICAN LAWYERS: A HISTORICAL INTRODUCTION 90 (2006).
41. HANNES SIEGRIST, ADVOCAT, BÜRGER UND STAAT (1996);
42. KENNETH F. LEDFORD, FROM GENERAL ESTATE TO SPECIAL INTEREST (1996).
43. DAVID LEMMINGS, PROFESSORS OF THE LAW: BARRISTERS AND ENGLISH LEGAL CULTURE IN THE EIGHTEENTH CENTURY 312 (2000).
44. See W. Wesley Pue, Exorcising Professional Demons: Charles Rann Kennedy and the Transition to the Modern Bar, 5 LAW & HIST. REV. 135 (1987);
45. W. Wesley Pue, Rebels at the Bar: English Barristers and the County Courts in the 1850s, 16 ANGLO-AM. L. REV. 303 (1987).
46. See Norman Spaulding, The Myth of Civic Republicanism: Interrogating the Ideology of Antebellum Legal Ethics, 71 FORDHAM L. REV. 1397 (2003).
47. See Robert W. Gordon, The Independence of Lawyers, 68 B.U. L. REV. 1 (1988).
48. See JERROLD AUERBACH, UNEQUAL JUSTICE: LAWYERS AND SOCIAL CHANGE IN MODERN AMERICA (1976).
49. See DAVID DYZENHAUS, JUDGING THE JUDGES, JUDGING OURSELVES: TRUTH, RECONCILIATION AND THE APARTHEID LEGAL ORDER (2003);
50. RICHARD L. ABEL, POLITICS BY OTHER MEANS: LAW IN THE STRUGGLE AGAINST APARTHEID, 1980-1994 (1995).
51. LUCIEN KARPIK, FRENCH LAWYERS 116-39 (1999).
52. On these movements, see especially the excellent case-studies collected in LAWYERS AND THE RISE OF WESTERN POLITICAL LIBERALISM (Terence C. Halliday & Lucien Karpik eds., 1997), and in FIGHTING FOR POLITICAL FREEDOM: COMPARATIVE STUDIES OF THE LEGAL COMPLEX AND POLITICAL LIBERALISM, supra note 14.
53. For counterexamples, featuring judges and lawyers acting as agents of repressive regimes, see RULE BY LAW: THE POLITICS OF COURTS IN AUTHORITARIAN REGIMES (Tom Ginsburg & Tamir Moustafa eds., 2008).
54. STEPHEN D. WHITE, SIR EDWARD COKE AND "THE GRIEVANCES OF THE C OMMONWEALTH" (1979).
55. Kenneth F. Ledford, Judicial Independence and Political Representation: Prussian Judges as Parliamentary Deputies, 1849-1913, 25 LAW & SOC. INQUIRY 1049 (2000).
56. JAMES WHITMAN, THE LEGACY OF ROMAN LAW IN THE GERMAN ROMANTIC ERA (1988).
57. FARHAT J. ZIADEH, LAWYERS, THE RULE OF LAW AND LIBERALISM IN MODERN EGYPT (1968);
58. Tamir Moustafa, Mobilizing the Law in an Authoritarian State: The Legal Complex in Contemporary Egypt, in FIGHTING FOR POLITICAL FREEDOM: COMPARATIVE STUDIES OF THE LEGAL COMPLEX AND POLITICAL LIBERALISM, supra note 14, at 193.
59. Such hopes are particularly visible in projects to promote the rule of law in China. For some measured skepticism about these projects, see William P. Alford, Of Lawyers Lost and Found: Searching for Legal Professionalism in the People's Republic of China, in RAISING THE BAR: THE EMERGING LEGAL PROFESSION IN EAST ASIA 287 (William P. Alford ed., 2007).
60. This is the general conclusion of the editors of an extensive series of case-studies of the relations of lawyers to movements for political liberalism. Terence Halliday, Lucien Karpik & Malcolm M. Feeley, The Legal Complex in Struggles for Political Liberalism, in FIGHTING FOR POLITICAL FREEDOM: COMPARATIVE STUDIES OF THE LEGAL COMPLEX AND POLITICAL LIBERALISM, supra note 14, at 1.
61. KARPIK, supra note 38, at 138-39.
62. For examples of such unsympathetic lawyers, even in a society with strong public norms of social solidarity and equality, see Ethan Michelson, The Practice of Law as an Obstacle to Justice: Chinese Lawyers at Work, 40 LAW & SOC'Y REV. 1 (2006).
63. See, for example, Richard Posner on the ideal form of a legal system: [T]he machinery consists of competent, ethical, and well-paid professional judges who administer rules that are well designed for the promotion of commercial activity. The judges are insulated from interference by the legislative and executive branches of government. They are advised by competent, ethical, and well-paid lawyers. Their decrees are dependably enforced by sheriffs, bailiffs, police, or other functionaries . . . . The judges are numerous enough to decide cases without interminable delay, and they operate against a background of rules and practices, such as accounting standards, bureaus of vital statistics, and public registries of land titles and security interests, that enable them to resolve factual issues relating to legal disputes with reasonable accuracy and at reasonable cost to the disputants. Richard A. Posner, Creating a Legal Framework for Economic Development, 13 WORLD BANK RES. OBSERVER 1, 1-2 (1998), available at http://siteresources.worldbank.org/INTLAWJUSTINST/Resources/ LegalFramework.pdf.
64. The clues to Weber's view of the role of lawyers in producing the conditions under which capitalism appeared in, and only in, the West are scattered throughout his work; see especially 2 MAX WEBER, ECONOMY AND SOCIETY 784-808 (Guenther Roth & Claus Wittich eds., 1968) ("The Legal Honoratiores and the Types of Legal Thought");
65. Id. at 973-79 ("The Technical Superiority of Bureaucratic Organization over Administration by Notables"). Exceptionally helpful modern guides to Weber's thinking about law, lawyers and capitalism are David Trubek, Max Weber on Law and the Rise of Capitalism, 3 WIS. L. REV. 720 (1972),
66. and Duncan Kennedy, The Disenchantment of Logically Formal Legal Rationality: Or, Max Weber's Sociology in the Genealogy of the Contemporary Mode of Western Legal Thought, in MAX WEBER'S ECONOMY AND SOCIETY, A CRITICAL COMPANION 322 (Charles Camic, Philip S. Gorski & David M. Trubek eds., 2005).
67. See WEBER, supra note 49, at 975.
68. See the sensible observations of Lawrence Friedman: Weber (at least in his instrumental mode) tended to exaggerate the importance of systematic legal thought. Granted, a legal system needs to provide a minimum of order and predictability . . . . What is less obvious is whether any particular kind of order and predictability, beyond these minima, is essential. Perhaps an honest court system, a stable society and strong institutions are enough . . . [S]ociety tolerates legal formalism only where it does not matter very much. Elsewhere, it is substantive rationality that rules. The actual work of the lawyers . . . is strongly pragmatic, substantive, directed toward concrete results.
69. Lawrence M. Friedman, Lawyers in Cross-Cultural Perspective, in LAWYERS IN SOCIETY, VOLUME 3: COMPARATIVE THEORIES 1, 17-19 (Richard A. Abel & Philip S.C. Lewis eds., 1989).
70. Id. at 17.
71. LEMMINGS, supra note 32, at 91.
72. RON HARRIS, INDUSTRIALIZING ENGLISH LAW: ENTREPRENEURSHIP AND BUSINESS ORGANIZATION, 1720-1844, at 167 (2000). Harris does suggest, however, that the English legal system was somewhat more functionally adapted to the development of English capitalism in the periods before and after the late-eighteenth to mid-nineteenth centuries.
73. R.W. KOSTAL, LAW AND ENGLISH RAILWAY CAPITALISM, 1825-1875, at 110-43 (1994).
74. Id. at 371-72.
75. For these examples, see Terence C. Halliday & Bruce G. Carruthers, Making the Courts Safe for the Powerful: The Commercial Stimulus for Judicial Autonomy in Reforms of the United States' Bankruptcy Law, in LAWYERS AND THE RISE OF WESTERN POLITICAL LIBERALISM, supra note 39, at 265;
76. DAVID A. SKEEL, JR., DEBT'S DOMINION 131-59 (2001).
77. See Susan Rose-Ackerman, "Grand" Corruption and the Ethics of Global Business, 26 J. BANKING & FIN. 1889 (2002).
78. See Jane Kaufman Winn, The Role of Lawyers in Taiwan's Emerging Democracy, in RAISING THE BAR: THE EMERGING LEGAL PROFESSION IN EAST ASIA, supra note 44, at 357, 375-78, for an interesting analysis of Taiwanese lawyers' participation in the formal legal and informal "fixer" zones of practice. Ronen Shamir tells us that American business lawyers in the New Deal, although on principle upholders of the constitutionalized classical private-law framework for a free market of lightly regulated producers, swallowed their reservations and supported the most radical anti-classical New Deal experiment, the corporatist National Industrial Recovery Act, because their clients did; and only turned against it when their clients did as well. SEE RONEN SHAMIR, MANAGING LEGAL UNCERTAINTY: ELITE LAWYERS IN THE NEW DEAL (1995).
79. William J. Bouwsma, Lawyers and Early Modern Culture, 78 AM. HIST. REV. 303, 314 (1973). James A. Brundage's magisterial Medieval Origins of the Legal Profession similarly points to lawyers as agents of intellectual pluralism and innovation because they were less hemmed in than theologians were by dogmatic boundaries. . . . Canonists explored and developed novel ideas about such basic issues as natural rights, representation and consent, the corporate structure of ecclesiastical and civil government, the right to wage war, or limits on the authority of popes, bishops and cardinals, or even monarchs, more freely than their colleagues in the theological faculty . . . .
80. JAMES A. BRUNDAGE, MEDIEVAL ORIGINS OF THE LEGAL PROFESSION: CANONISTS, CIVILIANS AND COURTS 467 (2008).
81. See, e.g., DONALD KELLEY, FOUNDATIONS OF MODERN HISTORICAL SCHOLARSHIP (1970);
82. J.G.A. POCOCK, THE ANCIENT CONSTITUTION AND THE FEUDAL LAW (1957).
83. See, e.g., Richard Ross, The Commoning of the Common Law: The Renaissance Debate Over Printing English Law, 1520-1640, 146 U. PA. L. REV. 323 (1998);
84. DANIEL J. HULSEBOSCH, CONSTITUTING EMPIRE (2005). Ironically, soon after lawyers helped convert law into a popular language of rights and self-government, the professional elite undertook to change it back again into a specialized science accessible only to the deeply and broadly educated.
85. See, e.g., Robert W. Gordon, The Ideal and the Actual in the Law: Fantasies and Practices of New York City Lawyers, 1880-1910, in THE NEW HIGH PRIESTS: LAWYERS IN POST-CIVIL WAR AMERICA 51 (Gerard W. Gawalt ed., 1984).
86. ASSAF LIKHOVSKI, LAW AND IDENTITY IN MANDATE PALESTINE (2006).
87. For a collection of essays on similar themes, see LAWYERS AND VAMPIRES: CULTURAL HISTORIES OF LEGAL PROFESSIONS (W. Wesley Pue & David Sugarman eds., 2003).
88. JOSEPH RAZ, The Rule of Law and Its Virtues, in THE AUTHORITY OF LAW 210, 211 (1979).