<i>Lawyers in Conflict and Transition</i> By KieranMcEvoy, LouiseMallinder, and AnnaBryson, Cambridge: Cambridge University Press, 2022, 440 pp., £85.00

Lawyers in Conflict and Transition is an invaluable study of how ‘lawyers as “real people” … respond to the challenges of conflict, authoritarianism, and transition’ (pp. 1, 298). Its main contribution to a growing literature on ‘cause lawyering’ lies in the careful analysis of material from 131 interviews with mostly lawyers, but also some judges and academics, from six jurisdictions (Cambodia, Chile, Israel, Palestine, South Africa, and Tunisia), all of which are ‘pressurised environments wherein the rule of law is undermined and subverted’ (p. 298). I will explain why, while much of the analysis may seem to suggest deep pessimism about the prospects for cause lawyering, the book nevertheless contains an optimistic message. The authors – Kieran McEvoy, Louise Mallinder, and Anna Bryson – tell the reader at the outset that they are ‘human rights activists who have for many years been directly involved in trying to find lawful and human-rights-compliant solutions to deal with the legacy of … [the] conflict’ in the ‘complex political’ society in which they all work and live: Northern Ireland (p. 3). They include within their scope lawyers whose ‘cause’ is on the right of the political spectrum, as well as a whole chapter on the neglected role of government lawyers. However, for the most part, they study cause lawyers on the liberal-left side of the political spectrum – that is, those who are either devoted to the pursuit of human rights for their own sake, or take up that pursuit because they see it as useful to advance the political cause that is their primary loyalty: the overthrow of some repressive and unjust regime. However, the pursuit of justice – the cause of both kinds of lawyers – is not an explicit theme of the book since the authors’ methodology is a ‘comparative sociology of lawyering perspective’ (p. 298). the role of legality in enabling and legitimating repressive political projects … in giving prominence to constitutions; holding political trials; expanding emergency laws; and engaging in overtly racist social and political engineering through law (for example, during apartheid in South Africa). (p. 70) Even in democratic legal systems, it seems that ‘with the application of due legal skill and ability and a fair judge (or jury) there is [only] at least some chance of a just outcome’ (p. 55). Three more factors both add to the value of the book and could be considered a basis for pessimism about cause lawyering. First, as the authors show, the work of cause lawyering need not be, and indeed is not, confined to the courtroom, either the courtrooms of their country or international judicial bodies. Cause lawyers can and do also make their challenges in non-judicial international fora and write exposés of injustice, whether in the media or as more formal reports. In addition, they can and often do play a part in the political movements that bring an end to authoritarian regimes, in the political negotiations that are the prelude to that end, and in transitional justice mechanisms. In the latter role, and in trials that may follow the work of truth commissions, lawyers can help to construct an account of the past that brings about a reckoning with it. However, while there is useful work to be done in all of these roles, the authors emphasize the way in which the legalistic cast of mind tends to narrow and distort the issues that require attention. Second, the authors devote a whole chapter to gender and cause lawyering, in part because of the ‘stag effect’ – the tendency in the literature to focus ‘“disproportionately” on the activities of male cause lawyers and “masculine” causes’ (p. 101) – and show how there is no single experience of women in conflict, including female lawyers, since ‘gender intersects with other variables such as race, class, religion, and political culture to shape women lawyers’ professional and personal lives’ (p. 104). However, the main upshot of their analysis is depressingly predictable. Female lawyers have to contend with patriarchy and prejudice not only within their society, but also within their profession, including at the hands of male cause lawyers. Moreover, the authors point out that the overthrow of an authoritarian political regime rarely leads to the elimination of patriarchal structures. Third, on the very last pages of their book, the authors provide a useful corrective to the image of the cause lawyer as the ‘noble symbol of struggle against repression and authoritarianism’ (p. 314). They fully endorse the claim that cause lawyering is a ‘deeply moral or political activity, a kind of work that encourages pursuit of the right, the good or the just’ (pp. 312–313).1 However, they also stress that even ‘legendary cause lawyers are indeed people – human beings, not saints’, subject to ego, the allure of wealth, and so on, but above all involved in the ‘ugly realities of resistant political violence and its consequences’ (pp. 312–314). Given all of the above, it is unsurprising that the authors do not spend much time on the debate about whether even in an undemocratic, authoritarian legal order, there is the potential for cause lawyers to achieve just outcomes that makes engaging in the practice of human rights lawyering worthwhile. Indeed, at the end of Chapter 3, ‘Boycott, Resistance, and the Law: Cause Lawyering in Conflict, Repression, and Transition’, which is where such discussion mostly occurs, they say that it is against the ‘weight of counter evidence’ that cause lawyers fight on, and offer as the explanation, quoting an Israeli cause lawyer, such lawyers’ ‘stubborn optimism’ in the rule of law (p. 100). It is even less surprising, then, that the authors do not discuss work in legal philosophy that deals with this kind of issue – notably, the debate between legal positivists and natural lawyers most obviously relevant to their study: whether there is a necessary connection between law and morality such that inherent in any legal order is the potential for lawyers to pursue justice within the law. That debate has been my academic preoccupation since I first encountered it as a law student in apartheid South Africa in the late 1970s, and became fascinated by the fact that even during a period in which the state was viciously suppressing political opposition in a bid to preserve white racial supremacy, cause lawyers could find a legal response ‘to the challenges of conflict, authoritarianism, and transition’ (p. 298). I will now argue that it is in the implications of Lawyers in Conflict and Transition for these debates that the optimistic message of the book resides – one that would arm budding cause lawyers with the kind of clear vision of the moral and political complexities of their profession. I am no sociologist, but I have always tried to relate the abstract concerns of normative theory to real-world issues – indeed, to argue that these concerns are best understood in that relationship. Thus, my first book deals with the implications for legal theory of different styles of adjudication in the ‘wicked legal system’ of apartheid South Africa,2 my second is concerned with the debates between three prominent legal theorists and public lawyers in late Weimar,3 and my third returns to South Africa to focus on the Legal Hearing of the Truth and Reconciliation Commission – the hearing into the role of lawyers and judges during the apartheid era, examining both their complicity and their resistance.4 These works of legal theory are among the handful that figure in the arguments of Lawyers in Conflict and Transition, a fact that I mention not only or mainly because I am delighted that they seemed relevant to the authors’ analysis of the experience of ‘real lawyers’. Rather, I want to explain why the book is such a valuable resource for political and legal philosophers, as well as for more obvious audiences, not despite the authors’ avoidance of normative theory, but because of it. Their scrupulous analysis and more abstract observations based on fieldwork tell us much about the real legal experience of injustice that could not otherwise be learned. In a nutshell, their book provides a bridge between the sociology of real lawyering and normative inquiry. In particular, I want to bring to the surface an implicit tension that runs throughout the book between two conceptions of the work that cause lawyers do: that it amounts to ‘legitimation work’ and that it amounts to ‘legitimacy work’. While the authors use both terms in the book, the first dominates by far because, I suspect, ‘legitimation’ can be of a morally repugnant regime, while ‘legitimacy’ connotes moral legitimacy, or the actual right to rule. For example, one can sensibly claim both that many actors in the apartheid regime did much work to legitimate it and that the regime did not as a result accrue legitimacy because it was without doubt illegitimate. In regards to legitimation, the authors take as their lens sociologist Rodney Barker's conception of legitimation work and his Weber-influenced focus on the notion of legitimation as a ‘process or a series of “observable entities” rather than abstract benchmarks’.5 Legitimation, according to Barker, is a process of ‘self-legitimation’ in which the actors seek to ‘demonstrate as much to themselves as to others, that they are justified in the patterns of action they follow’.6 Following Barker, the authors divide their actors into three ‘ideal types’, the first two of which seek to legitimate themselves to and as a group of ‘prestigious others’. ‘Struggle lawyers’, those whose first loyalty is to a political cause, seek to impress ‘political/armed movements’; ‘human rights lawyers’ seek to impress the international human rights movement; and both seek to impress the third ideal type: the ‘pragmatic moral community’ of all cause lawyers (p. 27). Notice that two actors are left out of this conception of community: the state itself – or, more precisely, the government that acts on behalf of the state – and the ‘people’ of the state, including the individuals and groups of individuals whose cases cause lawyers take up. In this regard, three questions arise. First, should these actors be brought in to give a more complete picture of the legitimation work that cause lawyers do, in which case the pragmatic moral community is considerably enlarged? Second, if they are brought in, does the distinction between legitimation work and legitimacy work start to blur, so that legitimation work actually makes the state more legitimate? Or, to put it in terms of my example above, did the work of cause lawyers during the apartheid era support the regime's claim to rule legitimately, to rule by right, as the authors themselves sometimes suggest in rare slips from talk of ‘legitimation work’ to talk of ‘legitimacy work’? Third, if, as I will suggest, the answer to the first two questions is ‘yes’, does it also follow that the distinction between the ideal types of struggle lawyers and human rights lawyers blurs? Again, my answer will be ‘yes’. However, as I will also suggest, this and the other positive answers do not in any way undermine the analysis in Lawyers in Conflict and Transition, since the very point of constructing ideal types is to abstract from the real world to bring out its complexity in such a way that the distinctions between them blur. The tension between legitimation and legitimacy work and the idea of the political sociology of obedience are well illustrated by an analysis of the practice of one of the authors’ real-world lawyers, the Israeli human rights lawyer Michael Sfard. In The Wall and the Gate: Israel, Palestine, and the Legal Battle for Human Rights, Sfard, who practises law in Israel's Occupied Territories, vividly depicts the fraught nature of cause lawyering for the lawyers who regard the legal regime against which they are struggling in court as deeply unjust.7 He explains that the calculation that such lawyers make in deciding whether to engage at all in their practice must factor in the fact that their victories as well as their losses help to shore up the legitimacy of the regime against which they struggle. In addition, they must accept that regime change through the courts is off the table since the judges before whom they appear accept the legitimacy of the regime even if they are willing to hear challenges to parts of it. As he and other cause lawyers face this ‘existential dilemma’, they have at times considered giving up their practice in Israel's courts, which is not to say that they would give up being cause lawyers.8 As already suggested, cause lawyers are not confined to making challenges in court. [t]he fraying of the … boycott was inevitable. The occupation was clearly here to stay for the foreseeable future and the strike wasn't having any discernible impact. Clients were engaging with the Israeli courts because they had to … Moreover, they weren't really offering a viable alternative to the Israeli system. (p. 65) Moreover, using law in this way gives resistance a ‘face’ – it individualises and humanises those on the receiving end of state power as well as offering some (however fleeting) dignity and self-respect to those who are willing to challenge that power. Across all of the sites we studied, cause lawyers repeatedly told us of their sense of moral responsibility to provide precisely that for their clients – what one South African cause lawyer described as ‘giving a person dignity … speaking to the accused person as a human being’. Jeremy Waldron has described dignity in legal processes in terms of ‘standing’ – ‘the formal legal standing, or perhaps, more informally, the moral presence’, reassuring an individual of their value and that they have a story to be heard.9 Affording dignity is itself an act of resistance. Courts in such contexts are more than places of instrumental resistance against repression and support for clients. They are also sites of political and symbolic resistance wherein both the power of the state can be subverted and the resistant capacity of those opposed to a regime can be demonstrated to audiences beyond the client and the court. (pp. 78–79) This passage stands out from the book because the authors depart from their methodology of comparative sociology in two respects: first, in identifying without qualification a moral quality to cause lawyering; and second, in attaching it to the lawyers’ clients, thus enlarging the pragmatic moral community beyond that of all cause lawyers, though not to the other actor that I mentioned earlier, the state. From my partial perspective, this is one of the most interesting passages in the book because of what it may reveal both about the authors and about my theme of the relationship of their study to normative theory. In the section on methodology in their introductory chapter, the authors take another item from the Weberian toolkit in explaining that their sociological study is a qualitative one of ‘politically aware’ actors that adopts Weber's idea of Verstehen: ‘an attempt to comprehend social action through an empathetic liaison with the actor on the part of the observer’ (p. 16).10 They thus try, as objectively as possible, to examine how the lawyers’ ‘sense of a professional “self” … was shaped and legitimated by their “political beliefs and aspirations”, … the structural contexts in which they lived and worked, and their relations with other stakeholders’ (p. 17). They worry explicitly in adopting this methodology about their own ‘positionality in conducting this research as three white academics from the Global North’ (p. 15), and they remark that ‘for left leaning cause lawyers at least, our own backgrounds as human rights activists may have helped offset some of our baggage as white Northern academics’ (p. 16). Verstehen is often translated as However, in these the authors seem to beyond to to a kind of with the cause lawyers who make up the of their In my such may be both and not in any way to the of their Verstehen what in one of the of philosophy of the point of of the of a legal the idea in order to from the theory of law put by in the which as does Weberian sociology of that if one is to have a into a social such as legitimation, one must to of law as the of a of which with a to a of among the necessary of the of power is that some at least must in the and accept its … that this sense it is that the power of law its that did not to moral though he late that this left with an one in which legal order is understood as a of I have that the point of that do and must morally endorse the legal order – that is, regard it as legitimate as they about their legitimation work – and to the that lawyers and their clients in that they to I have that such work not only the legal order, but also makes it It is the of the that to all that is to and preserve society the with the of the and in left by the to do the that follow from of a order or from for the most part, we and case law not just because they with for but because we accept that them is the right to for the most part, that a through the order is In support of his a rather of in the rule of law as a for his the last of his book, he that the occupation will end, apartheid in South and it does find that we are not of a culture of good that we do have moral to That provides the why ‘human rights lawyers must their and that they have a role in the of in the In my claim than It amounts to what the authors an Israeli human rights the in some cases of an political (p. It first, as as there is a legal order in as as government is by the of culture of good will be In other the alternative political order is already to some by of the regime making itself to challenge because it its through law. Second, while those do not to change the regime, they do provide a basis for cause lawyers to of and that does the in the regime that can be by political movements with which the cause lawyers may be Third, that the state part of the pragmatic moral with the lawyers’ clients. In the challenge to the state on behalf of their clients, the lawyers are the state to the nature of the between it and those subject to the the individuals in what we can of as the community’ – all those whom the state it is not only the state that is to these In their discussion of pragmatic moral the authors relate the story of a South African female cause lawyer who the were women who were part in a and was by one of the male because the of the was for the women to that the lawyers’ here was to the women out of the here was to have the women and into the of the (p. we have the why the ideal types to as cause lawyering the lawyers with another as their to an ideal of the rule of law may also put them in with the of movements with which they are otherwise Indeed, the authors seem to accept this point they say that cause lawyers whose were shaped by the moral community to which they their legitimacy work to be between that of struggle and human rights lawyers’ (p. However, as I at the that ideal types is part of their They are an from and they do their work not in between the types and of the real but in us to that In the authors of Lawyers in Conflict and Transition are not only human rights but also deeply to both the rule of law and to the role of cause lawyers in holding to account that to have a As they as far as possible, not their own political to their analysis of that role, they are to offer a of the complexities of the morally and fraught of cause lawyering. Thus, I take the message of the book not to be but that … will not be the from … point of is or for what … to offer and who … that … will be to say in of – only this has a for …

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