Thailand Law Journal 2010 Spring Issue 1 Volume 13

GLOBALIZATION, INVESTING IN LAW, AND THE CAREERS OF LAWYERS FOR SOCIAL CAUSES: TAKING ON RIGHTS IN THAILAND

Frank Munger New York Law School ¹

WHY STUDY CAUSE LAWYERS?

Thailand, the site of my research, is an Asian society with a long history of authoritarian government and a legal system influenced by civil law traditions. [FN4] Unique among Southeast Asian countries, Thailand has never been colonized or subjugated to European law. We may fairly ask, then, why would individuals drawn to social advocacy choose to deploy a symbolic resource such as law, and especially the "rule of law," against a powerful government in a society where law has uncertain legitimacy and legal advocacy has unproven power? Observing the growing global attraction to rights advocacy under circumstances such as these, legal anthropologist Sally Engle Merry sensibly concludes that "[t]aking on rights is a difficult process and fraught with ambivalence. Asserting rights often comes at a price." [FN5]

Cause lawyers, of course, are not typical anywhere, and that is why they are interesting. In the United States, cause lawyering is related to an important aspiration of client-centered professionalism--achieving justice for each client and placing that goal at times ahead of making money and personal benefit. [FN6] Many lawyers, though choosing a more traditional practice recognize the importance and legitimacy of cause lawyering, if not the legitimacy of everything that cause lawyers do. Even lawyers who are not and will never be activists defend the profession's activism, its involvement in public interest law, pro bono requirements, and law reform because they believe that these activities reflect the profession's political independence and power, as well as its entitlement to public respect. These symbolic resources are assets that legitimize the deep involvement of lawyers in the development of society through policy-making, international relations, and overall political life. The viability of cause lawyering as a career may indeed be a good measure of the legal profession's political independence and power and may illuminate the role and legitimacy of law in a society.

The strength of the American legal profession, and its cause lawyers, is closely related to America's unique political institutions. Other societies, like Thailand, whose history and institutions create a different and more limited role for law in contention for power, provide less promising terrain for cause lawyers. No one doubts the power of lawyers in the United States. [FN7] "In the US," write scholars Yves Dezalay and Bryant Garth, "'symbolic innovators' ... gravitate to the powerful and relatively autonomous professional milieus." [FN8] In other words, in the United States ambitious activists often pursue some type of public interest law practice. My study asks why, in spite of Thailand's less promising terrain, do Thai activists invest in law and what do they achieve by doing so? Answering these questions will help us understand the practical meaning of "rule of law" in Thailand from an important perspective: lawyers seeking to open greater political space for social causes.

Research that involves charting social justice lawyers' careers is a new strategy with great potential in the field of socio-legal studies of the rule of law in developing societies. Dezalay and Garth's groundbreaking comparative study of the political independence of lawyers in the United States and Latin America relied on microhistories of lawyers' careers. [FN9] Their interviews tapped the local and intimate knowledge of the power and limitations of law that is required for the successful pursuit of a legal career and for the deployment of the symbolic resources at the profession's disposal. Similarly, my collective biography of social justice lawyers in Thailand potentially provides a rich mapping of the paths open to those who choose law and of the opportunities to use law to influence other institutions of the society, especially government.

This article provides a preliminary report of research based on interviews conducted in Thailand with Thai lawyers and other activists on behalf of a wide variety of politically weak or socially disadvantaged groups seeking equality, power, or merely recognition for their causes. The multi-generational and variously committed ensemble of interviewees permits comparison of the opportunities, limitations, and successes and failures of law in many contexts, increasing the likelihood of observing patterns. In my interviews, I ask when and how they use the law on behalf of social movements and causes, about their methods of work and how they support themselves, about the nature of their clients or other work if their work is not for specific clients, and about their successes and failures. I chart their careers, how and why they entered the profession, their networks of collaborators, and, as accurately as possible, the mentors, role-models, or institutions that taught them or directed their career paths. I pay particular attention to the networks and movements they attempt to build and to their perceptions of their own work.

Part II of this article describes the origin of the concept of cause lawyering, the paradoxes of its attractiveness outside the safe haven of developed, liberal democracies, and the dependence of law on a unique and uncertain process of adaptation in each developing society. Part III describes the strengths of the research strategy employed by this study, which is a multi-generational collective biography. Part IV introduces four Thai social justice lawyers, describes their careers, and sets forth the historical context of each. Part V discusses what the narratives reveal about the influence of social change on the four careers described in Part IV. Part VI, my conclusion, offers a brief speculation about the effects of social justice law practice on achievement of the "good society"--a vision in which the rule of law becomes a means to greater political space for the social causes of the lawyers--and what we might learn from fuller examination of cause lawyers' careers.

II. CAUSE LAWYERS IN A GLOBAL PERSPECTIVE

A rapidly growing literature on cause lawyering takes liberal legalism as its starting point. [FN10] Liberal legalism, the dominant legal ideology in developed Western democracies, combines two conflicting premises. First, liberal legalism incorporates the rule of law, a concept that encompasses procedures that serve to legitimize the state's authority. [FN11] Second, liberal legalism establishes absolute limits on the state's authority that protect autonomy, equality, and other individual and community values. [FN12] Lawyers, as members of a profession privileged by the state, stand between these two potentially conflicting mandates, serving by grace of the state's authority but often challenging the state's authority for transgressions of substantive rights. Under liberal legalism, lawyers exercise their privileges to mobilize the law with some degree of immunity from reprisal or interference even when they invoke rights that challenge the state's authority. [FN13] Emphasis on individual rights creates space for advocacy not only for existing rights, but also for the expansion of rights and even for new rights that will bring about substantial social change on behalf of individuals or the public generally. [FN14] In the United States, cause lawyers have often succeeded in their advocacy for new rights that impose limits on the state and have rarely faced reprisal for their advocacy. [FN15] For this reason, scholarship about U.S. cause lawyers has focused less on the consequences of conflict with the state than on lawyers' motivation, the structure of their practices, and the roles they play in movements for social justice.

This picture changes in societies where assumptions about the rule of law, rights, and the lawyer's professional role are quite different. In many societies, "speaking law to power" [FN16] risks more serious reprisal than in Western democracies. Professor Richard Abel's examination of the institutional sources of opportunity for cause lawyering worldwide suggests that both liberal legal ideology and the institutional and political framework of a society are important. [FN17] The United States' well entrenched ideology of rights and a relatively independent judiciary are important factors facilitating cause lawyering, but they, in turn, have developed in part because of the opportunities to challenge state authority created by federalism, separation of powers, and institutional support for professional autonomy. [FN18] Abel examined societies that ranged from authoritarian to newly emerging democracies and corrupt dictatorships. He found that "speaking law to power" also occurs in the absence of significant support for liberal legalism in societies where law and legal process generally lack either moral legitimacy or the support of independent legal institutions. [FN19]

[FNa1]. Frank Munger is a professor of law at New York Law School. This article is an expanded version of a talk prepared for New York Law School Faculty Research Presentation Day 2008. For advice at critical moments in this research I want to thank Elizabth Chambliss, Bryant Garth, Jim Gibson, Robert Albritton, Yves Dezalay, and especially David Engel, who persuaded me to join him in Thailand nearly ten years ago for a small joint project, which eventually grew into a much larger one of my own. I am especially indebted to the generous and patient Thai lawyers and others who consented to be interviewed for this study. For valuable advice and assistance I owe particular thanks to Pipob Udomittipong, Somchai Homla-or, Thawinadee Bureekul, and Professor Paisit Panitchkul, as well as the entire faculty of law of Chiangmai University who welcomed me and generously offered advice about many aspects of the project. My Thai research assistants have been invaluable, Duean Wongsa in Chiangmai, Worranwan Kalyanamitra and Suriwan Lapsomboornanon in Bangkok, and Nuanchan Singkran and Poonrit Kuakul at Cornell University and later in Bangkok. At New York Law School, my assistants have contributed valuable research, helpful insights, and camaraderie. They include research assistants Cory Blitz, Charles Messina, Scott Baldessano, Sharon Sorkin, Ahmed Sana, Rena Malik, Andrew Jenkinson, and Renee Rivas and transcribers Johara Tucker, Ashley Emerson, Alexandra Sims, Trent Swift, Danny Jiminian, and Stephen Meinscheim. In the interests of space I omit names of numerous, and excellent, Thai translators I have employed. The Thai Ministry of Education generously provided information as did the Lawyers Council of Thailand. Funding for this research came from a grant from the Law School Admissions Council and a New York Law School faculty summer research grant.

[FN1]. Austin Sarat & Stuart Scheingold, Cause Lawyering and the Reproduction of Professional Authority: An Introduction, in CAUSE LAWYERING: POLITICAL COMMITMENTS AND PROFESSIONAL RESPONSIBILITIES 3, 3 (Austin Sarat & Stuart Scheingold eds., 1998).

[FN2]. See generally STUART A. SCHEINGOLD & AUSTIN SARAT, SOMETHING TO BELIEVE IN: POLITICS, PROFESSIONALISM, AND CAUSE LAWYERING 23-50 (2004) (providing a historical context of cause lawyering).

[FN3]. See generally CAUSE LAWYERS AND SOCIAL MOVEMENTS (Austin Sarat & Stuart A. Scheingold eds., 2006) (containing essays relating to the life cycle of social movements and the effect that cause lawyers and the social movements have on one another); CAUSE LAWYERING AND THE STATE IN A GLOBAL ERA (Austin Sarat & Stuart Scheingold eds., 2001) (containing essays relating to cause lawyering in, among other locations, Ghana, the United Kingdom, Latin America, the United States, and Israel); LAW AND GLOBALIZATION FROM BELOW: TOWARDS A COSMOPOLITAN LEGALITY (Boaventura de Sousa Santos & César A. Rodríguez-Garavito eds., 2005) (focusing on the changes in legal institutions against the backdrop of globalization through a collection of essays); THE WORLDS CAUSE LAWYERS MAKE: STRUCTURE AND AGENCY IN LEGAL PRACTICE (Austin Sarat & Stuart A. Scheingold eds., 2005) (containing essays highlighting the breadth of causes served and providing information on case studies from India, Argentina, and the United Kingdom); Sarat & Scheingold, supra note 1, at 5-7 (contrasting, at a superficial level, the development of cause lawyering in common law and civil societies, as well as in rule-of-law systems and authoritarian regimes).

[FN4]. See discussion infra Part IV. See generally CHRIS BAKER & PASUK PHONGPAICHIT, A HISTORY OF THAILAND (2005).

[FN5]. SALLY ENGLE MERRY, HUMAN RIGHTS AND GENDER VIOLENCE: TRANSLATING INTERNATIONAL LAW INTO LOCAL JUSTICE 216 (2006).

[FN6]. A fundamental principle of the lawyer-client relationships in Anglo-Saxon law is client loyalty; accordingly, a lawyer's judgment and effort is exercised "solely for the benefit of his client and free of compromising influences and loyalties." MODEL CODE OF PROF'L RESPONSIBILITY EC 5-1 (1980) (correlating with Model Rules 1.7(a), 1.8(c)-(g) & (j)). As amplified by aspirational statements within the Model Code of Professional Responsibility and the Model Rules of Professional Conduct, as well as statements of purpose of virtually every bar association, lawyers maintain a stance of seeking the full measure of justice on behalf of clients.

[FN7]. Many studies amply demonstrate the power of lawyers and law firms in American policy making. See, e.g., JEROLD S. AUERBACH, UNEQUAL JUSTICE: LAWYERS AND SOCIAL CHANGE IN MODERN AMERICA (1976); WILLIAM HALTOM & MICHAEL MCCANN, DISTORTING THE LAW: POLITICS, MEDIA, AND THE LITIGATION CRISIS 116-20 (2004); JOHN P. HEINZ ET AL., URBAN LAWYERS: THE NEW SOCIAL STRUCTURE OF THE BAR 50 (2005); Robert Gordon, Lawyers and Legal Thought in the Age of Enterprise, in PROFESSIONS AND PROFESSIONAL IDEOLOGIES IN AMERICA 70 (Gerald L. Geison ed., 1983); Ronan Shamir, Professionalism and the Monopoly of Expertise: Lawyers and Administrative Law 1933-1937, 27 LAW & SOC'Y REV. 361 (1993). Counterintuitively, a study of the role of Washington, D.C., law firms in the policy making processes of Congress and administrative agencies suggests that they may be less involved in policy making than their reputation, based upon a myth of lawyer dominance, suggests. See Robert L. Nelson et al., Lawyers and the Structure of Influence in Washington, 22 LAW & SOC'Y REV. 237 (1988). On the influential role of lawyers in foreign policy from the late nineteenth century onward, see Yves Dezalay & Bryant G. Garth, Law, Lawyers, and Empire, in 3 CAMBRIDGE HISTORY OF LAW IN AMERICA 718 (2008). Famed French sociologist Pierre Bourdieu comments that the far greater power of lawyers in the common law legal tradition than in the civil law tradition begins with the authoritative interpretation of law by courts in the common law tradition and, in turn, the power of lawyers to influence interpretation. Pierre Bourdieu, The Force of Law: Toward a Sociology of the Juridical Field, 38 HASTINGS L.J. 814, 822 (1987).

[FN8]. YVES DEZALAY & BRYANT G. GARTH, THE INTERNATIONALIZATION OF PALACE WARS: LAWYERS, ECONOMISTS, AND THE CONTEST TO TRANSFORM LATIN AMERICAN STATES 55-56 (2002).

[FN9]. See Yves Dezalay & Bryant G. Garth, Constructing Law Out of Power: Investing in Human Rights as an Alternative Political Strategy, in CAUSE LAWYERING AND THE STATE IN A GLOBAL ERA, supra note 3, at 354; DEZALAY & GARTH, supra note 8.

[FN10]. See SCHEINGOLD & SARAT, supra note 2; Sarat & Scheingold, supra note 1.

[FN11]. See BRIAN Z. TAMANAHA, ON THE RULE OF LAW: HISTORY, POLITICS, THEORY 92 (2004).

[FN12]. See id. at 110-11.

[FN13]. See Geoffrey C. Hazard, Jr., The Future of Legal Ethics, 100 YALE L.J. 1239, 1242-46 (1991); David Luban, Reason and Passion in Legal Ethics, 51 STAN. L. REV. 873, 877-80 (1980). There is a large literature on zealous advocacy and nonaccountability as professional norms.

[FN14]. See SCHEINGOLD & SARAT, supra note 2, at 13-14. But liberal legalism does not encompass advocacy for changes in the basic institutions of society or change by means other than advocacy for rights through the court system. See id. at 15-17.

[FN15]. See Richard Abel, Speaking Law to Power: Occasions for Cause Lawyering, in CAUSE LAWYERING: POLITICAL COMMITMENTS AND PROFESSIONAL RESPONSIBILITIES, supra note 1, at 69.

[FN16]. Id. Abel's use of the phrase "speaking law to power" is a play on the claim made by some activists that "speaking truth to power" is an effective weapon for the weak. Similarly, the phrase "speaking law to power" reflects the belief held by some lawyers that the law can be a weapon of the weak who seek to limit abuses of power. Id. at 103.

[FN17]. Id. at 70.

[FN18]. Id. at 71, 87-95.

[FN19]. Id. at 78-102.

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) .