This collection of essays seeks to test “the proposition that lawyers are active agents in the construction of liberal political regimes” (p. 2) around the world. The perhaps unsurprising answer: Sometimes they are, and sometimes they are not. But even though the essays fail to establish any essential connection between lawyers and liberalism, they provide a deeply interesting and useful set of case studies illustrating the manifold ways that legal actors influence or fail to influence liberalization and de-liberalization processes.
In earlier work, the editors argued that lawyers, “acting collectively, have been periodic but by no means consistent agents of political liberalism” (p. 3, citing Terrence C. Halliday and Lucien Karpik, “Political Lawyering,” in Neil J. Smelser and Paul B. Baltes, eds., International Encyclopedia of Social and Behavioral Sciences, 2001) in the historical transitions to liberalism in England, France, Germany, and the United States. The present volume seeks to determine whether that argument has broader, perhaps universal, application. As a result, its focus differs from the earlier work in three ways. First, its geographic scope is wider: It considers 16 countries in Asia, the Middle East, Latin America, and Europe, but, strangely, none in Africa. Second, its temporal focus is contemporary: Although the essays all begin with a summary of the past, almost all investigate the current relationship between lawyers and liberalism. Finally, its institutional subject matter is larger: The volume considers the role not merely of lawyers alone but of the whole “legal complex,” defined as “the system of relations among legally-trained occupations which mobilize on a particular issue” (pp. 6–7), including judges, law professors, and bureaucrats.
The definition of liberalism, however, remains the same as in the earlier work: Its three constituent elements are a moderate state, that is, a state characterized by a constitutional division of power; civil society; and first-generation basic legal freedoms, that is, those rights that typically preceded social and economic rights in Europe. The editors specifically excluded those later rights from their definition of liberalism because their earlier study had shown that “lawyers' collective defense of civil rights does not extend to struggles in favor of economic and social rights” (p. 4).
Though a collection of separate essays, therefore, this volume is devoted to answering a single question: Is the legal complex in other countries supporting liberalism in the way that lawyers historically supported it in England, France, Germany, and the United States? To a remarkable extent, all the contributors directed their analyses to answering the question for the countries that they study. This tight focus gives the collection an unusual unity, coherence, and utility. It shows the great value of collaboration by scholars with very different backgrounds on a single research agenda.
If the volume is unified by the question that it seeks to answer, however, the answers themselves are extremely variable. If the editors had hoped that the essays would show that lawyers are generally “active agents in the construction of liberal political regimes” (p. 2) across the globe, they must have been disappointed. Instead, the essays show that the legal complex in different countries bears no consistent relationship to liberalism at all. In their extraordinarily useful introduction to the collection, the editors themselves observe that the essays describe four different patterns: “The Legal Complex [as a whole] Mobilizes to Fight for Basic Legal Freedoms” (p. 12); “Lawyers [but not the other elements of the legal complex] Mobilize to Fight for Basic Legal Freedoms” (p. 20); “Lawyers Mobilize Selectively” (p. 25) on some issues, while ignoring state oppression of part of the population; and “Hostility by the Legal Complex to Basic Legal Freedoms” (p. 28).
Despite this tremendous variability, the editors nonetheless claim that the normal state of affairs is for the legal complex, especially lawyers, to promote liberalism. The editors admit that there are exceptions, but they regard them as precisely that—exceptions to the general rule. Thus, they argue that lawyers typically fight for a moderate state: They mobilize for an independent judiciary “except for cases of manifest hostility in extreme circumstances (e.g., war, civil war)” and “for limits on executive power with exceptions” when the country is threatened or feels threatened (p. 32). Similarly, lawyers fight for basic legal freedoms except in the face of “widespread public fears about internal disorder or threats to public security” (pp. 32–34). Finally, the editors observe that lawyers often promote civil society, but principally by agitating for their own autonomy.
Many lawyers and law professors, including the author of this review, like to believe that lawyering and liberalism do go hand in hand, and so the editors' conclusions are welcome news. Nonetheless, they unfortunately rest on a one-sided reading of the evidence contained in the essays, which actually portray no systematic connection. First, what the editors describe as exceptional circumstances—perceived security threats and outright conflict—are the norm in many parts of the world, so that lawyers' battles for freedom are actually the exception. Second, as the editors concede, the essays also describe several cases where lawyers were hostile to liberalism, even in the absence of perceived threats or conflicts “either because they are co-opted or because their dissent is crushed” (p. 34). Finally, even when lawyers do fight for liberalism, only a segment of the profession actually goes to the barricades; most generally stand on the sidelines: “Curiously, in no case was each segment of the legal complex internally unified in its fight for basic legal freedoms” (p. 17). But if some lawyers do fight for liberalism and some do not, it is not clear why the former should be regarded as the norm. The essays actually show that lawyers are just as capable of indifference to liberalism as they are of commitment to it.
For that reason, the volume's great value lies not in its global claim of a systematic connection between lawyers and liberalism but, rather, in the rich wealth of contextual information conveyed in the essays. That information raises and, to some extent, answers a different but equally important question: not whether lawyers systematically support liberalism but under what conditions they do so. For example, as these essays show, lawyers tend to promote liberalism when supported by civil society (see, e.g., pp. 18–19); when the governing regime feels constrained to respect the rule of law so as to attract foreign investment (see pp. 19–20); when lawyers have private clients who hire them to fight for those clients' rights (see, e.g., p. 13); when lawyers form a collective identity oriented around rule-of-law ideals (see pp. 90–100); when lawyers are exposed to international norms and actors (see, e.g., pp. 18–19); and when the judiciary is independent, so that lawyers might actually win some of their fights for freedom in court (see, e.g., p. 17). Those conclusions have great real-world significance because they can guide reformers in their struggles to create conditions under which lawyers will most likely assist transitions to liberalism or resist transitions away from it.
