New York Law School Legal Studies Research Paper Series, 2009
The same technologies that groups of ordinary citizens are using to write operating systems and e... more The same technologies that groups of ordinary citizens are using to write operating systems and encyclopedias are fostering a quiet revolution in another area - social activism. On websites such as Avaaz.org and Wikipedia, citizens are forming groups to report on human rights violations and organize email writing campaigns, activities formerly the prerogative of professionals. This article considers whether the participatory potential of technology can be used to mobilize ordinary citizens in the work of human rights advocacy. Existing online advocacy efforts reveal a de facto inverse relationship between broad mobilization and deep participation. Large groups mobilize many individuals, but each of those individuals has only a limited ability to participate in decisions about the group’s goals or methods. Thus, although we currently have the tools necessary for individuals to engage in advocacy without the need for professional organizations, we are still far from realizing an ideal...
for advice and for reading earlier drafts. 1 A seminal essay by Rueschemeyer (1989) examined the ... more for advice and for reading earlier drafts. 1 A seminal essay by Rueschemeyer (1989) examined the ' mutually constructive ' relationship between a state and its legal profession. Drawing primarily on the history of legal professions in continental Europe, Britain and the United States, Rueschemeyer argued that differences in function, structure, demographics, and role in civil society grew from emerging state institutional structures. Nearly a decade earlier, Luckham (1981: 289-90), in a study of third-world legal professions, concluded that ' lawyers and the legal profession can be compared because they are the product of forces of history-the accumulation of capital, the expansion of trade imperial conquest, the development of an international system of nation states, the bureaucratization of social relationships-which increasingly operate at a world level. Nowhere more so than the Third World, where … [t]he fact that different legal systems are linked through a process of transnationalization means that history is at the crux of many of the differences between them. ' 23 State-Centred Comparison of Legal Professions in an Era of Globalisation FRANK W MUNGER * comparisons. First, European history showed that state formation had a major impact on the development of legal occupations and their place in society. Second, at least in Europe, law became a transcendent ' reference point ' beyond state authority, endowing legal expertise with power that placed lawyers in a ' mutually constructive ' relationship with the state. Third, Rueschemeyer argued that the more autonomous a state was from political control (eg states with a strong civil service), the greater its capacity to regulate (and limit) the autonomy of legal work. Fourth, development of states and legal professions has been path-dependent: early patterns have persisted in spite of new forces of political change. Common law and civil law systems retained essential differences notwithstanding convergence between economies and societies. Last, although law and legal professions have always been infl uenced by cultures, politics and economies outside a state ' s borders, the state is an important gatekeeper with capacity to modify external infl uences on the profession. Global comparisons among legal professions must consider diversity far greater than that found in Europe. Legal professions in numerous non-European states are grounded in histories and cultures quite different from the centuries of political entanglement and shared origins in Roman and canon law, which characterised legal development in Europe. Transitions in state structure and formation of new states accompanying decolonisation, the end of the Cold War and dissolution of the Soviet Union have had consequences for legal systems and professions. Comparisons undertaken before the recent globalisation might pay less attention to the web of international legal relationships that have grown in complexity and infl uence since World War II. Law ' s globalisation has become increasingly important, and lawyers have become important players in establishing new governance norms embodied in treaties and international norms in broad areas of governance, trade, and human rights. New sources of international law not only challenge traditional forms of state authority but also raise questions about conceptions of law, state and legal profession that are fundamental to meaningful state-centred comparison. Indeed, we might ask whether the ' state ' remains a useful point of comparison. Contemporary theory suggests that a state is less an agent with distinctive functions than a site of contention for power and construction of state authority (Vu 2010; Dezalay and Garth 2002). Further, while lawyers may still be experts on state authority, neither law nor lawyers are defi ned or empowered exclusively by the state; cases may be relatively free of its dominion. Given these new perspectives, it makes sense to consider whether a state-centred approach remains useful. II. GLOBAL COMPARISON-CONCEPTUAL CHALLENGES We might begin by asking what justifi es special attention to the function and organisation of legal professions ? Although the original comparative legal professions project (Abel and Lewis 1988a; 1988b; 1989) employed a sociology of professions framework, focused on the organisation of law work and its demographic, occupational, and economic implications, sociolegal research identifi ed the legal profession ' s constructive (or constitutive) power-its power to shape ideas, relationships and actions. The profession ' s rise in Europe was based upon law ' s mastery of the ' symbolic terrain ' of confl icts over authority in early modern states (Dezalay and Garth 2010). From its rise to power beginning with the separation of secular and religious authority in eleventh-and twelfth-century Europe (Berman 1983), law carried the pan-European authority of the church (a political force with its own interests) and Roman origins. The growth of commerce-a resource for rulers and the engine of an emerging civil society-made mastery of law doubly necessary. Law was not only an alternative to potentially
Until the financial crisis in 2008-2009, decades-long acceleration of economic globalization seem... more Until the financial crisis in 2008-2009, decades-long acceleration of economic globalization seemed, to many, to offer exciting possibilities for reducing poverty and inequality, although few such possibilities were realized. But after the meltdown of global capital in the last year, excitement has been replaced by caution and former commitments have been placed on hold. Persistent and escalating economic inequality and poverty remains a defining feature of globalization. Poverty, like global warming, has become a problem at once too big for small solutions and too profitable to motivate quick agreement on a solution. Since World War II, boom and bust in transnational capitalism has shaped globalization, relationships between markets and states, and the urgency of movements for economic and social equity. Boom following World War II established a period of global hegemony by the US and
The precarious authority of law The cause lawyers I have been studying in Southeast Asia encounte... more The precarious authority of law The cause lawyers I have been studying in Southeast Asia encounter the precarious authority of law when law is most needed, in confrontations with government officials and other powerful adversaries. Law is not considered precarious in the United States or other stable and developed democracies; yet the question that set sociology of law on its path among scholars of my generation is whether law works (and if so why), anywhere, for any purpose, and a closely related question, what does law do? These questions are especially compelling in societies where law is an import and the path of legal development has been influenced by the politics of a new state very different from the old states of Europe and America. The protagonist of this case study is a young Thai lawyer, Duean, who has found a way to make human rights work within a legal system in which an American lawyer would find it difficult to function. The primary purpose of the NGO for which she w...
This study examines why courts made sense to those who established them and how the courts\u27 au... more This study examines why courts made sense to those who established them and how the courts\u27 authority is being utilized. For relatively powerless and resource-poor litigants, barriers to litigation may be many, but when these barriers are overcome, administrative courts exercise extraordinary influence, even when they fail to render a decision fully vindicating a plaintiffs legal rights. Administrative courts serve multiple functions, not only by exercising power, in the famed words of Chief Justice Marshall, to say what the law is, 13 but also by decentering the concentrated power of Thailand\u27s insular and tradition bound ministries as well as its politicians. Binding decisions can exercise what Michael Dowdle calls concurrent jurisdiction to counter concentrated executive or political control over policy making through authority of their own that is directed to enforcing the rule of law. Courts\u27 convening power requires officials to engage other stakeholders and to attend...
New York Law School Legal Studies Research Paper Series, 2009
The same technologies that groups of ordinary citizens are using to write operating systems and e... more The same technologies that groups of ordinary citizens are using to write operating systems and encyclopedias are fostering a quiet revolution in another area - social activism. On websites such as Avaaz.org and Wikipedia, citizens are forming groups to report on human rights violations and organize email writing campaigns, activities formerly the prerogative of professionals. This article considers whether the participatory potential of technology can be used to mobilize ordinary citizens in the work of human rights advocacy. Existing online advocacy efforts reveal a de facto inverse relationship between broad mobilization and deep participation. Large groups mobilize many individuals, but each of those individuals has only a limited ability to participate in decisions about the group’s goals or methods. Thus, although we currently have the tools necessary for individuals to engage in advocacy without the need for professional organizations, we are still far from realizing an ideal...
for advice and for reading earlier drafts. 1 A seminal essay by Rueschemeyer (1989) examined the ... more for advice and for reading earlier drafts. 1 A seminal essay by Rueschemeyer (1989) examined the ' mutually constructive ' relationship between a state and its legal profession. Drawing primarily on the history of legal professions in continental Europe, Britain and the United States, Rueschemeyer argued that differences in function, structure, demographics, and role in civil society grew from emerging state institutional structures. Nearly a decade earlier, Luckham (1981: 289-90), in a study of third-world legal professions, concluded that ' lawyers and the legal profession can be compared because they are the product of forces of history-the accumulation of capital, the expansion of trade imperial conquest, the development of an international system of nation states, the bureaucratization of social relationships-which increasingly operate at a world level. Nowhere more so than the Third World, where … [t]he fact that different legal systems are linked through a process of transnationalization means that history is at the crux of many of the differences between them. ' 23 State-Centred Comparison of Legal Professions in an Era of Globalisation FRANK W MUNGER * comparisons. First, European history showed that state formation had a major impact on the development of legal occupations and their place in society. Second, at least in Europe, law became a transcendent ' reference point ' beyond state authority, endowing legal expertise with power that placed lawyers in a ' mutually constructive ' relationship with the state. Third, Rueschemeyer argued that the more autonomous a state was from political control (eg states with a strong civil service), the greater its capacity to regulate (and limit) the autonomy of legal work. Fourth, development of states and legal professions has been path-dependent: early patterns have persisted in spite of new forces of political change. Common law and civil law systems retained essential differences notwithstanding convergence between economies and societies. Last, although law and legal professions have always been infl uenced by cultures, politics and economies outside a state ' s borders, the state is an important gatekeeper with capacity to modify external infl uences on the profession. Global comparisons among legal professions must consider diversity far greater than that found in Europe. Legal professions in numerous non-European states are grounded in histories and cultures quite different from the centuries of political entanglement and shared origins in Roman and canon law, which characterised legal development in Europe. Transitions in state structure and formation of new states accompanying decolonisation, the end of the Cold War and dissolution of the Soviet Union have had consequences for legal systems and professions. Comparisons undertaken before the recent globalisation might pay less attention to the web of international legal relationships that have grown in complexity and infl uence since World War II. Law ' s globalisation has become increasingly important, and lawyers have become important players in establishing new governance norms embodied in treaties and international norms in broad areas of governance, trade, and human rights. New sources of international law not only challenge traditional forms of state authority but also raise questions about conceptions of law, state and legal profession that are fundamental to meaningful state-centred comparison. Indeed, we might ask whether the ' state ' remains a useful point of comparison. Contemporary theory suggests that a state is less an agent with distinctive functions than a site of contention for power and construction of state authority (Vu 2010; Dezalay and Garth 2002). Further, while lawyers may still be experts on state authority, neither law nor lawyers are defi ned or empowered exclusively by the state; cases may be relatively free of its dominion. Given these new perspectives, it makes sense to consider whether a state-centred approach remains useful. II. GLOBAL COMPARISON-CONCEPTUAL CHALLENGES We might begin by asking what justifi es special attention to the function and organisation of legal professions ? Although the original comparative legal professions project (Abel and Lewis 1988a; 1988b; 1989) employed a sociology of professions framework, focused on the organisation of law work and its demographic, occupational, and economic implications, sociolegal research identifi ed the legal profession ' s constructive (or constitutive) power-its power to shape ideas, relationships and actions. The profession ' s rise in Europe was based upon law ' s mastery of the ' symbolic terrain ' of confl icts over authority in early modern states (Dezalay and Garth 2010). From its rise to power beginning with the separation of secular and religious authority in eleventh-and twelfth-century Europe (Berman 1983), law carried the pan-European authority of the church (a political force with its own interests) and Roman origins. The growth of commerce-a resource for rulers and the engine of an emerging civil society-made mastery of law doubly necessary. Law was not only an alternative to potentially
Until the financial crisis in 2008-2009, decades-long acceleration of economic globalization seem... more Until the financial crisis in 2008-2009, decades-long acceleration of economic globalization seemed, to many, to offer exciting possibilities for reducing poverty and inequality, although few such possibilities were realized. But after the meltdown of global capital in the last year, excitement has been replaced by caution and former commitments have been placed on hold. Persistent and escalating economic inequality and poverty remains a defining feature of globalization. Poverty, like global warming, has become a problem at once too big for small solutions and too profitable to motivate quick agreement on a solution. Since World War II, boom and bust in transnational capitalism has shaped globalization, relationships between markets and states, and the urgency of movements for economic and social equity. Boom following World War II established a period of global hegemony by the US and
The precarious authority of law The cause lawyers I have been studying in Southeast Asia encounte... more The precarious authority of law The cause lawyers I have been studying in Southeast Asia encounter the precarious authority of law when law is most needed, in confrontations with government officials and other powerful adversaries. Law is not considered precarious in the United States or other stable and developed democracies; yet the question that set sociology of law on its path among scholars of my generation is whether law works (and if so why), anywhere, for any purpose, and a closely related question, what does law do? These questions are especially compelling in societies where law is an import and the path of legal development has been influenced by the politics of a new state very different from the old states of Europe and America. The protagonist of this case study is a young Thai lawyer, Duean, who has found a way to make human rights work within a legal system in which an American lawyer would find it difficult to function. The primary purpose of the NGO for which she w...
This study examines why courts made sense to those who established them and how the courts\u27 au... more This study examines why courts made sense to those who established them and how the courts\u27 authority is being utilized. For relatively powerless and resource-poor litigants, barriers to litigation may be many, but when these barriers are overcome, administrative courts exercise extraordinary influence, even when they fail to render a decision fully vindicating a plaintiffs legal rights. Administrative courts serve multiple functions, not only by exercising power, in the famed words of Chief Justice Marshall, to say what the law is, 13 but also by decentering the concentrated power of Thailand\u27s insular and tradition bound ministries as well as its politicians. Binding decisions can exercise what Michael Dowdle calls concurrent jurisdiction to counter concentrated executive or political control over policy making through authority of their own that is directed to enforcing the rule of law. Courts\u27 convening power requires officials to engage other stakeholders and to attend...
Uploads
Papers by Frank Munger