No full-text available
To read the full-text of this research,
you can request a copy directly from the authors.
State Transformation, Globalization, and the Possibilities of Cause Lawyering
Abstract
“Cause lawyering” denotes the practice of law by those committed to furthering through the upholding of a particular cause by legal means, the aims of the good society. This books explains how new configurations of state power, brought about by globalization and democratization processes, are creating new opportunities for altering the political and social status quo, and how cause lawyers in a wide variety of fields are developing new transnational networks for exploiting them.
... 4 Especificamente sobre o engajamento da American Bar Association no apoio aos advogados de presos condenados a morte e na construção da causa da abolição da pena de morte, ver Sarat (2001). ...
The article intends to supply with elements the analysis of the relation between the phenomenon of internationalization of Law and the emergency of lawyers engaged in the judicial representation of collective causes. Two dimensions are analyzed. A first one displays a exploratory panorama of the causes in the national and international scene. One second dimension of analysis approaches representative cases of promotion of causes in the decade of 90 and 2000. These two dimensions allow to advance the hypothesis of that the political redemocratization and the constitution of international nets of circulation of political and legal causes contribute for the definition of the profiles of judicial ativism.
... 106 The unifying feature of cause lawyering and what differentiates it from traditional lawyering is the embrace by these legal practitioners of the goals of their clients and their dedication to promoting those ends. 107 To be sure, lawyers may have a pluralistic approach to their clients and their causes, pursuing conventional lawyering strategies as well as cause lawyering on behalf of the same clients or over the course of their careers. 108 Some general contrasts to conventional lawyers may be helpful to illustrate the distinctions between the two groups. ...
Lawyers for Guantánamo detainees have been instrumental in shaping the country’s legal response to the threat of terrorism. Yet we know very little about the unique challenges they have faced in their work. This paper seeks to address this gap by examining the experiences the habeas attorneys representing Guantánamo detainees. This group has been the only non-governmental personnel with access to detainees who had the opportunity and arguably the responsibility to reveal what they could about their clients and their clients’ experiences “inside the wire.” Studying their experiences provides new knowledge about the nature of legal practice of habeas attorneys for Guantánamo detainees. It also deepens our understanding of the role of law and the legal profession in the nation’s efforts to combat terrorism. Who are the attorneys representing Guantánamo detainees? What is the nature of this representation? What lessons can we learn from the experience of habeas counsel about the role of lawyers during this chapter in United States legal history? To answer these questions, we conducted an interview study of eighteen attorneys who served as lead counsel in habeas petitions on behalf of 164 of the estimated 430 Guantánamo detainees who have had legal representation, or approximately 38% of represented detainees. We also interviewed 32 key informants who worked in and around the Guantánamo detention system including former military personnel stationed at Guantánamo, interpreters who worked at the camp, current and former government officials, and representatives of 2 nongovernmental organizations. The interview data is supplemented by legal documents, media stories, reports by government sources and non-governmental organizations, and scholarly literature. Several themes emerge from the findings that illuminate the dynamics of the practicalities, politics, and professional identity of Guantanamo detainee habeas counsel. The study found that the conditions of confinement, limitations on access to detainees, and the limits of the law shaped and constrained attorney-clients relationship between detainees and their habeas counsel. Conditions of confinement were harsh and respondent found their clients’ health deteriorated over time which in turn eroded attorney-client relations. In addition, habeas counsel used broad public advocacy strategies to challenge outside the courtroom the Bush Administration’s characterization of all Guantánamo detainees as hardened terrorists and publicize their clients’ conditions of confinement and treatment to turn around public opinion and influence the Supreme Court. Finally, professional identity and commitment to the rule of law were critical to fueling habeas counsels’ motivation to represent Guantánamo detainees. Habeas counsel were drawn from different practice areas in the bar but shared a common moral narrative about their professional role in the larger drama of the Bush Administration’s counterterrorism efforts. Lawyers have been instrumental in building a public record of the human consequences of U.S. Guantanamo policy and underscore the contribution of the legal profession to democratic governance.
... 4 Especificamente sobre o engajamento da American Bar Association no apoio aos advogados de presos condenados a morte e na construção da causa da abolição da pena de morte, ver Sarat (2001). ...
Pretende-se fornecer elementos para a análise da relação entre o fenômeno de internacionalização do direito e a emergência de advogados engajados na representação judicial de causas coletivas. São analisadas duas dimensões: a primeira expõe um panorama exploratório das causas coletivas no cenário nacional e internacional; a segunda aborda casos representativos de promoção de causas na década de 90 e 2000. Estas duas dimensões permitem avançar a hipótese de que a redemocratização política e a constituição de redes internacionais de circulação de causas políticas e jurídicas contribuem para a definição dos perfis de ativismo judicial.
“Transnational Transnational advocacy networks as defined by Keck and Sikkink help diffuse international human rights norms and thereby change the behavior of states. Death penalty, abolition ofDelay, death penalty andDeath penaltyLesbian, gay, bisexual, and transgender (LGBT) rights are in a process of norm emergence, and Non-Governmental Organizations (NGOs)Civil society and activists are creating alliances across borders and partnering with organizations on the ground to diffuse these norms. One type of transnational advocacy network involves lawyers in Transnational litigation networks, who seek to bring strategic human rights cases with the purpose of building a global body of transnational jurisprudence. Organizations such Delay, death penalty andDeath Penalty Project and Human Dignity Trust have embraced a transnational litigation strategy to ensure state compliance and generate an international Delay, death penalty andMandatory death penalty and Anti-sodomy laws in the Commonwealth.
This work is the result of a research in process which aims at remaking the conceptions of the Judiciary power which join in the debate around its "Reform", along the nineties and part of the year 2000. One focuses two great dimensions of analisys. 1. The conceptions of the Judiciary power and its legitimacy within the space of power. The social professional and intelectual powers and the political corporate ties which stand for the positions in competion within the debate's scope. 2. The social professional and intelectual courses and the political and corporate ties of the main leaderships which stand for the positions in competions within the debate. In the two dimensions are considered the relationships of the "Reform's" national debates with the international movements of institutions reforms. The making of the research material occurs mainly through the qualitative methods specially the checking of statements, bibliographical production and holding interviews with the judges and political leaderships who stood out in the instances that defined the "Judiciary Reform's" propositions.
Voluntary sector advice agencies have performed an important function in providing free, accessible advice in the UK for many decades. As legal aid is slashed, and 'austerity' leaves everyday life for many ever more precarious, their role has never been more essential. Advice agencies provide a dynamic and increasingly significant transition point where the rights, responsibilities and grievances of the individual are brought into dialogue with formal legal structures. Drawing on ideas from the 'sociology of translation', this paper sets out to consider the multiple, complex roles these organizations play. They are involved not simply in the delivery of advice to individuals, but in a collective concern that translates personal grievances into matters-of-public-concern. The paper concludes by considering the implications for an emerging research agenda that considers advice organizations as legal actors in a fragmenting world.
Legal mobilization has spread in China over the past 20 years and is generally considered by both activists and scholars as a way to advance democracy and rule of law. Focusing on the mobilization in favour of migrant workers and on politically moderate practices, which are both more frequent and widely held as more successful, I argue to the contrary that resistance and reproduction of political domination are mutually constitutive. Public interest litigation and administrative litigation appear as new forms of political participation that constitute an internal regulation to the authoritarian regime, thus contributing to explain the regime's capacity to adapt and its durability. This article also accounts for new strategies developed by some lawyers that shun the courts and use law to ‘empower civil society’ and that thus do not contribute to structural reproduction. Though activists are struggling to turn their strategies into more institutionalized practices, they remain an ad hoc mechanism of internal control.
A central concern of scholarship on the legal profession and international donor agencies promoting rule of law in China is the bar's role as a force for political reforms, and in particular the fostering of political liberalism, the promotion of democracy and the protection of human rights.Part I argues that there is general agreement in the legal profession, and among other actors in the legal complex and society more generally, in the value of rule of law broadly understood. However, the driving force for legal reforms is not political liberalism. The development of legal profession and the legal complex is very much a story of modernization and economic growth. But even given the general consensus regarding the value of rule of law, conflicts within the legal profession and between the legal profession and other legal-political system actors complicate the process of translating the broad principles and abstract ideals of rule of law into feasible reforms. These conflicts are intensifying as China enters into the critical middle-income stage, a stage where the reform process stagnates in many developing countries.Part II argues that in addition to weak support for liberal democracy, a variety of other factors limit the ability of the legal profession to advance political liberalism. Most notably, China is following an East Asian model of development that greatly restricts opportunities for lawyers to engage in "political lawyering."Part III suggests that, contrary to the cautious optimism of some commentators, the criminal defense bar is not likely to emerge as the leading edge of political reform in China for a host of reasons, the most important of which is a public intolerant of the rapidly escalating crimes rates that inevitably have resulted, and will continue to result, from the transition to a market-economy, urbanization and the generation of greater wealth combined with high levels of inequality.Part IV argues that while there is somewhat more political space for "cause-lawyering" in socio-economic cases than for political-lawyering in civil and political rights cases, the efficacy of cause-lawyering is limited by various factors, most notably the lack of resources and weak institutions, as is typical in lower-middle income countries.Part V concludes that while we ought not expect the legal profession to be the leading edge of political liberalism, or even to play a significant role in the short term, we ought not be too despondent either. Several East Asian countries have overcome or outgrown similar problems. They have established legal systems that are generally rule of law compliant and protect human rights reasonably well, even if several continue to be non-democratic or somewhat dysfunctional democracies, and even if they remain less liberal than their economically advanced western counterparts. Moreover, small marginalized factions within the legal profession have managed to play a key role in political reforms in these countries, and in some cases have even managed to change the nature and political orientation of the legal profession and legal complex.
This article examines how cause lawyering can flourish under authoritarianism. Using the case of Hong Kong, it argues that the process of the sovereignty transition between the 1980s and 1997 contributed to the emergence of cause lawyering by establishing a favorable legal opportunity structure, by creating a political structure that provides incentive for lawyers-cum-politicians to engage in cause lawyering, and by prompting a few dedicated foreign human rights lawyers to move their practices to Hong Kong. Apart from the factors related to the sovereignty transition, other factors also facilitated the rise of cause lawyering in Hong Kong, including a rights-receptive judiciary, an autonomous legal profession, and a government-funded legal aid system.
The social, as a plane of thought and action, has been central to political thought and political programmes since the mid-nineteenth century. This paper argues that, while themes of society and concerns with social cohesion and social justice are still significant in political argument, the social is no longer a key zone, traget and objective of strategies of government. The rise of the language of globalization indicates that economic relations are no longer easily understood as organized across a single bounded national economy. Community has become a new spatialization of government: heterogeneous, plural, linking individuals, families and others into contesting cultrual assemblies of identities and allegiances. Divisions among the subjects of government are coded in new ways; neither included nor excluded are governed as social citizens. Non-political strategies are deployed for the management of expert authority. Anti-political motifs such as associationism and communitarianism which do not seek to govern through society, are on the rise in political thought. The paper suggests some ways of diagnosing and analysing these novel territorializations of political thought and action.
It is regularly argued that human rights are not a Western discovery and that non-Western societies have long emphasized the protection of human rights. Such claims, however, are based on a confusion of human rights and human dignity. A concern for human dignity is central to non-Western cultural traditions, whereas human rights, in the sense in which Westerners understand that term—namely, rights (entitlements) held simply by virtue of being a human being—are quite foreign to, for example, Islamic, African, Chinese, and Indian approaches to human dignity. Human rights are but one way that has been devised to realize and to protect human dignity. Although the idea of human rights was first articulated in the West in modern times, it would appear to be an approach particularly suited to contemporary social, political, and economic conditions, and thus of widespread contemporary relevance both in the West and the Third World. © 1982, American Political Science Association. All rights reserved.
Three basic types of democratic critique have been levelled against "neoliberal" economic integration agreements such as the NAFTA and the Single European Act. One type holds that the institutions created to oversee the integration process are deficient on democratic grounds. This paper summarizes and evaluates this type of democratic critique. It is argued that allegations that the European Union suffers from a "democratic deficit" are not very convincing. However, criticisms of the lack of openess and due process in neoliberal dispute resolution processes are more persuasive. Arguments for a treaty ratification process that includes a referendum are also convincing.
This essay presents three accounts or narratives of globalization. Each narrative describes the triumph of a central character or institution (science, markets, law) against its challenges or enemies (ignorance, regulated or planned economies, human caprice and unreason). The stories convey moral tales about what justice might look like and how social relations might be justly organized and governed. I argue that under the dominant accounts of globalization, the dynamics of power are obscured so that social relations seem to be produced by invisible or natural forces. When the operation of power is masked, I argue, justice, and efforts to confine and regulate power, is made less probable. Law and society scholarship can contribute to a critique of globalization by continuing to identify the ways in which law and power are mutually implicated and embedded in social relations. Rather than describe current forms of international social exchange as globalization, a seemingly neutral terms, the essay urges scholars to identify the role of power by naming global social exchanges as "postmodern colonialism."
L'A. reflechit sur la crise actuelle de l'utopie (traditionnellement fondee sur une conception du travail)| il l'analyse dans son lien avec les programmes politiques du " welfare " incapables de dessiner l'avenir
The theory of ethical relativism has been the subject of much misunderstanding. It is argued that the central insight of relativism is enculturation and not tolerance. Relativism is characterized as a metaethical theory about the nature of moral perceptions. As such it is logically consistent, permits moral criticism, and is compatible with cross-cultural universals. The existence of universals may indicate global support for particular human rights.
The article offers a descriptive analysis of strategies of crime control in contemporary Britain and elsewhere. It argues
that the normality of high crime rates and the limitations of criminal justice agencies have created a new predicament for
governments. The response to this predicament has been recurring ambivalence that helps explain the volatile and contradictory
character of recent crime control policy. The article identifies adaptive strategies (responsibilization, defining deviance
down, and redefining organizational success) and strategies of denial (the punitive sovereign response), as well as the different
criminologies that accompany them.
Powers of Freedom, first published in 1999, offers a compelling approach to the analysis of political power which extends Foucault's hypotheses on governmentality in challenging ways. Nikolas Rose sets out the key characteristics of this approach to political power and analyses the government of conduct. He analyses the role of expertise, the politics of numbers, technologies of economic management and the political uses of space. He illuminates the relation of this approach to contemporary theories of 'risk society' and 'the sociology of governance'. He argues that freedom is not the opposite of government but one of its key inventions and most significant resources. He also seeks some rapprochement between analyses of government and the concerns of critical sociology, cultural studies and Marxism, to establish a basis for the critique of power and its exercise. The book will be of interest to students and scholars in political theory, sociology, social policy and cultural studies.
Rethinking Civil Society: Towards Democratic Consolidation,
- Diamond,
International Human Rights and Cultural Relativism,
- Teson,
Islamic Law, International Relations, and Human Rights: Challenge and Response,
- Ahmed
- Chambers,
On the Social Significance of Critical Lawyering,
- Rosen,
- Jameson,