Thailand Law Journal 2010 Spring Issue 1 Volume 13

III. WHAT CAUSE LAWYERS DO: A RESEARCH STRATEGY

In their study comparing human rights lawyers in the United States and Latin America, Dezalay and Garth adopted a promising approach to understanding the complex means by which law and legal process take hold or fail in developing societies. The study focused on "microhistories" of lawyers' careers, "and, more generally, relational biograph[ies]," through which they were able to describe human rights advocacy in each society as a field "constructed out of the tools and resources that were available to particular actors at discrete moments." [FN44] Through analysis of the collective biographies of elite lawyers, they were able to "situate individuals in relation to others in fields that are constantly changing." [FN45] Their approach illuminated the relationship between opportunities for legal action and the institutional structure underscored by Lev. Tracing careers objectively illustrates, in a way that no declaration of motives, ideals, or principles could, the evolving opportunities, rewards, and limits for legal advocacy within Latin American and U.S. political institutions.

Tracing the careers of human rights lawyers in the United States and Latin America revealed sharp differences in the relationship between law and the "field of state power." [FN46] Investing in law offered very different career opportunities and leverage for political change in the two hemispheres. While human rights advocacy and public interest law practice are widely valorized in the United States--and may be a springboard to a mainstream legal career, professional status, and influence in politics and government-- investment in similar legal activity in Latin America is typically a dead end. [FN47] There the path to power is through politics, not law. Because law lacks independent institutional support, human rights and public interest law practice earns little respect and accumulates far less professional capital in Latin America.

Dezalay and Garth's research on lawyers' careers has important implications for better understanding the globalization of legal expertise and the success of rights-based advocacy. [FN48] The resources contributed by global networks of advocacy, foreign aid, or international organizations supporting human rights had far from the expected long term effects. Where the structural determinants of legal careers were quite different in Latin America from the United States, career narratives revealed different potentials and limits for law. Further, Dezalay and Garth advise scholars who are "promoters of transnational cause lawyering to investigate critically the norms that gain legitimacy, funding and media attention in the places that count." The place that counts most is often Washington, D.C., where United States' foreign policy shapes the goals of many international networks whose apparent disagreements with foreign policy often merely fine tune the same overall approach to transplantation of familiar legal institutions to developing societies. [FN49]

Lawyers' careers, therefore, have provided a promising starting point for examining both the evolving role of law and the influence of global advocacy for rights in developing societies; but to achieve a better understanding, the research must go well beyond the boundaries of Professors Dezalay and Garth's research. While they helpfully draw attention to the "system of objective forces" influencing career decisions, they have, for comparative purposes, greatly simplified their account of the forces at work in shaping lawyers' careers by explaining differences largely in terms of the overall strength or weakness of the profession and, in turn, the legal system's overall political dependence or independence. This oversimplification ignores local variation in the influence of law, which may be important, for example, to the relative importance of law in regulating different institutional sectors or in mediating different types of relationships between individuals and government. [FN50] While law may lack power with respect to some traditional institutions and some types of social relationships, it may have much greater power with respect to others. Thus, Dezalay and Garth may have drawn broad conclusions reflecting only the views of an inner circle of state power in countries where the legitimacy of law is weak at the highest levels but not uniform or static throughout the society.

Theory and empirical research suggest the "forces" that draw cause lawyers into careers and influence deployment of their expertise include the structure of work settings; [FN51] types of clients; [FN52] relationships that are formed in professional or "epistemic" communities (groups sharing common views about causes of and solutions to social problems); [FN53] opportunities to use law in combination with other forms of political, moral, and symbolic power; [FN54] and global resources available through networks, conferences, education, travel, funding, and other relationships. [FN55] Contexts that seem to make cause lawyering risky to observers may nevertheless offer attractive possibilities for a career in law when viewed in the vernacular. [FN56] Even where courts, the profession, and law are weak, lawyers may mobilize a variety of resources, including symbolic and political resources, religious institutions and values, or other cultural systems and networks of support, either within the state itself or outside the society. They may deploy collective action that circumvents the legal system or strategically exploit limitations of the legal system. Thus, the seemingly limited overall prospects for law in opposing the state may not tell the whole story of the production of legal advocacy.

In sum, neither the view that associates cause lawyering with liberal legalism nor the view that identifies cause lawyering with the dangers of "speaking law to power" from a position of opposition to the state captures all the ways that Thai lawyers may pursue a moral vision of society. The lawyers that were interviewed for this study collectively pursued careers spanning more than half a century and virtually every significant social movement in Thailand. Their careers have not all been cut from the same cloth or shaped by shared purposes. Yet all have been influenced by the legal culture formed during Thailand's unique, non-colonial path toward development: first as a modernizing monarchy, then as an evolving "bureaucratic polity" in which all leading political factions had power within the state administration, [FN57] and, most recently, as a society struggling to establish democratic political institutions. It is to the narratives of the careers of four Thai social justice lawyers that we turn next in order to understand the forces that have shaped their work and their ability to influence the exercise of government power.

IV. FOUR GENERATIONS OF THAI SOCIAL JUSTICE LAWYERS

In this Part we will meet four Thai cause lawyers and learn about their careers, beginning not only with their earliest thoughts about law but also a description of the decisions, actions, and experiences that have carried them to the present. The lawyers' lifetimes span Thai history from the 1920s, when the oldest was born under the absolute monarchy, to the present, under Thailand's eighteenth constitution. [FN58] The oldest entered the practice of law in 1951, under a military dictator, and the youngest in 1999, in a democracy just two years after the ratification of Thailand's most liberal constitution, the so-called "People's Constitution." Changes which occurred over this eighty-year period, in the structure and institutions of government, economy, and society, interweave the stories of the lawyers. Their narratives, while representative of their contemporaries in no strict sense, have been chosen to illustrate the effects of these changes during four broad time periods which I call "generations." The time periods I use to define a generation have been determined by the changes that seemed most significant to the lawyers themselves, rather than by wholly arbitrary criteria such as evenly spaced cohorts. Seminal political and social events led to experiences which define particular generations in Thai culture (much like World War II or the "60s" define generations in the United States) and which radically changed the opportunities for deploying law within the society. The four generations are thus a convenience used to compress the more complex and complete story of law and institutional development that lies at the core of this research.

In subsection A, I introduce each narrator and sketch Thailand's legal history. This serves two purposes: to justify the generational markers I use to contextualize each career and to provide essential institutional and political history for the reader. In subsections B through E, I tell a more complete story about each of the lawyers and fill in additional historical details.

The four narratives intersect at important points. While several of the lawyers know each other, none knows all of the others. Yet an important theme is that these careers have been influenced not only by historical context but by the actions of earlier generations that have shaped the field of social justice law practice. Thus, the narratives are presented in order, tracing both history and the cumulative effects of earlier generations.

Unlike the studies of human rights lawyers' careers conducted by Dezalay and Garth, I am not concerned here with an elite group aspiring to become members of an inner circle in the "field of state power." These Thai lawyers had little expectation of high status and were motivated in part by the much more prosaic goal of finding a career. They found ways to sustain careers validated by some measure of self-respect and effectiveness. Yet like the careers of the potential power elite, careers of typical social justice lawyers also provide a window into law's legitimacy, independence, and power.

Previous research provides little guidance for predictions about how social justice law practices may emerge or not emerge, succeed or fail, in rapidly developing new states, as a means to limit the power of government. The inductive approach adopted in this article attempts to sketch two interrelated stories. The first is a story about the process that draws individuals into a difficult line of work and into a profession unknown prior to the late nineteenth century (and unknown to most well into the twentieth century) in the hope of influencing government and social change. The second story is about the consequences of this decision, not only for the lawyers themselves but for the profession, and potentially, the "field of state power." The contributions of the individual narrators, however small, must be viewed as part of a broader process, and I will point out, in a speculative concluding section, where I think their contributions are reflective of trends in the broader process.

[FN44]. Dezalay & Garth, supra note 9, at 355. The authors' conceptualization of a career employed throughout their work is derived from the work of French sociologist Pierre Bourdieu, who describes the factors which contribute to construction of a field of action. A "field" is conceived as a "patterned system of objective forces" that "prescribes its particular values and possesses its own regulative principles" which governs the probability of rewards or sanctions. PIERRE BOURDIEU & LOIC J. D. WACQUANT, AN INVITATION TO REFLEXIVE SOCIOLOGY 17-18 (1992).

[FN45]. Dezalay & Garth, supra note 9, at 355.

[FN46]. Id. The "field of state power" is a field in which actors attempt to exercise power over or on behalf of the state.

[FN47]. See id. at 356-58.

[FN48]. Over the past thirty years, networks of advocates for human rights and other rights-based causes have grown in number, resources, and influence. See id. at 354. Latin American human rights lawyers, Dezalay and Garth argue, have been sustained almost entirely by funding from U.S. philanthropies and legitimacy derived from international affiliations. See id. at 361-63. The authors describe the growth of Amnesty International (AI) and Human Rights Watch (HRW) as organizations driven in large part by their dissenting stance within U.S. domestic politics and their evolving strategies for influencing American political opinion, as well as world opinion. See id. at 360-62, 364-65. The Ford Foundation, and later AI and HRW, focused on funding human rights organizations in Latin America in opposition to the then official American foreign policy to support Latin American dictators. See id. at 362. But the support for human rights and rule of law by Americans through legal education of Latin American lawyers at U.S. law schools, links between American or international human rights specialists and their Latin American counterparts, and funding for human rights litigation in Latin America, failed to transform the field of human rights advocacy in Latin America. See id. at 369. In Chile, for example, politically well-connected but out-of-power elites, who also happened to be lawyers, joined the American-funded effort to promote human rights. See id. at 359. When regime change occurred, these elites reentered conventional politics, abandoned their legal careers, and the human rights movement in Chile collapsed. See id. at 368-69; DEZALAY & GARTH, supra note 8, at 55-56.

[FN49]. Dezalay & Garth, supra note 9, at 372.

[FN50]. See supra text accompanying note 46.

[FN51]. See, e.g., Jennifer Gordon, Law, Lawyers, and Labor: The United Farm Workers' Legal Strategy in the 1960s and 1970s and the Role of Law in Union Organizing Today, 8 U. PA. J. LAB. & EMP. L. 1, 13-17, 46-50 (2005).

[FN52]. See HEINZ ET AL., supra note 7, at 7.

[FN53]. See Stephen Meili, Latin American Cause-Lawyering Networks, in CAUSE LAWYERING AND THE STATE IN A GLOBAL ERA, supra note 3, at 307, 311.

[FN54]. Scholars in the United States are discovering that lawyers for social movements often support a savvy mixture of legal and non-legal strategies determined by political opportunities and collective decision making. See Michael McCann & Helena Silverstein, Rethinking Law's "Allurements": A Relational Analysis of Social Movement Lawyers in the United States, in CAUSE LAWYERING: POLITICAL COMMITMENTS AND PROFESSIONAL RESPONSIBILITIES, supra note 1, at 261, 276 (using the term "new style" public interest litigation as suggested in SUSAN M. OLSON, CLIENTS AND LAWYERS: SECURING THE RIGHTS OF DISABLED PERSONS (1984)).

[FN55]. See KECK & SIKKINK, supra note 36.

[FN56]. See supra note 39.

[FN57]. See Kevin Hewison, Introduction: Power, Oppositions, and Democratization, in POLITICAL CHANGE IN THAILAND: DEMOCRACY AND PARTICIPATION 1, 3-5 (Kevin Hewison ed., 1997). Thailand's bureaucratic polity concentrated power in Bangkok and incorporated all powerful elite groups, including the rising Sino-Thai commercial families who were not part of the hereditary aristocracy. See id.

[FN58]. See generally Wikipedia: Constitution of Thailand, http:// en.wikipedia.org/wiki/Constitution_of_Thailand (last visited Feb. 24, 2009) (providing a well-researched and referenced overview of Thai constitutional history).

Globalization, investing in law, and the careers of lawyers for social Causes: taking on rights in Thailand. Originally appeared in Volume 53 of the New York Law School Law Review (2009) .