Cause lawyering in transnational perspective: National conflict and human rights in Israel/Palestine

Law & Society Review, 1997 by Lisa Hajjar

There is an interest among scholars working on cause lawyering to "globalize" the subject by studying professional and political networks that span national boundaries. The globalizing scope of human rights provides a particularly relevant perspective, complementing the more narrowly attenuated focus on the roles and activities of cause lawyers. The subjects of this article are Israeli and Palestinian cause lawyers who have worked in the Israeli military court system in the Occupied Territories. This study adopts a transnational perspective both because the context itself (Israel/Palestine) is composed of relations that span national boundaries (statal and ethnonational) and because it befits a consideration of the international networks of human rights. Following an introductory discussion of transnationalism and a brief background on Israel/ Palestine and the military courts, I turn to three aspects of cause lawyering: the political motivations inspiring lawyers to engage in such work; a comparative assessment of the legal and extralegal strategies pursued by lawyers; and the influence of human rights on the politics of lawyering in this context.

I. Thinking Transnationally

Around the world, lawyers often play important roles in formulating and advancing social or political causes. "Cause lawyering" refers to the legal and extralegal engagements of politically motivated lawyers, whether the cause is comprehensive transformation, such as independence or democratization, or a more limited aspect of public policy, such as expanded rights or guaranteed protections of some kind. In contrast to "conventional" or "client lawyering," which is tailored to accommodate prevailing arrangements of power, cause lawyering involves the application of professional skills and services to transform some aspect of the status quo.1

The very notion of "cause" implies agency, motivation, social identifications, political relations, and goals. The other side of the coin is the ways in which sociopolitical dynamics affect cause lawyering as opportunities for intervention expand or contract, political alliances shift, and causes become redefined by circumstance or deliberation. The study of cause lawyering, then, involves analysis of the contours of resistance through the medium of law within a given field of hegemonic relations.

Much of the work done on cause lawyering thus far has focused on national contexts wherein lawyers' causes relate to the politics or policies of their own state or to issues affecting their own society. Even when the subjects are lawyers working in support of causes which have an internationalist agenda, cause lawyering often is organized and operationalized within national boundaries.2 However, there is an interest among scholars working on cause lawyering to incorporate a more "global" perspective. The objective is to study professional and political networks that span national boundaries in order to gain an understanding of the factors and forces that drive and/or inhibit cause lawyering in "local" contexts.

Although cause lawyering manifests itself in widely varied ways around the world in terms of the causes and practices of lawyers, the quest for change provides a kind of organizing principle at the heart of the concept. Globalizing the study of cause lawyering would not (necessarily) alter the subject (lawyers and their activities); rather, it would involve an opening up of the boundaries-often national-that frame the analysis.

Human rights, as both a normative discourse and a form of international politics, provides a global perspective particularly relevant to the study of cause lawyering. It offers a way of imagining the world or, more specifically, a way of imagining a world changed for the better. Many examples of cause lawyering are tantamount to human rights work of some kind, and human rights "works" in large part through the efforts and activities of lawyers. As Stanley Cohen (1995:5) notes, "Lawyers are the dominant profession to claim ownership of the human rights problem and have succeeded in establishing a virtual monopoly of knowledge (how the subject is framed) and power (what strategies of intervention are used)." Yet there is a distinction between cause lawyering and human rights: the latter is already globalized; the genealogy of human rights is rooted in the globalization of modernist conceptions and powers of law, notably the ideologicopolitical significance of the rule of law.3 Human rights standards are "supranational," thus transcending and penetrating the boundaries of state sovereignty. Nevertheless, the state remains the premiere (albeit not exclusive) object and subject of human rights. This tension in human rights between the national and the international is instructive for efforts to globalize the study of cause lawyering.

Human rights is both a promising and a problematic form of international politics. On the one hand, its overarching goal is to establish universal norms of government extending to all societies. This goal is promoted and advanced by a growing international human rights movement, in which lawyers play an important part. On the other hand, human rights goals often are marginalized in local contexts by the politics of sovereignty (i.e., through abuses perpetrated or made possible by the domestic authority of states over the populations they govern),4 and in the international order by a lack of effective means or suprastate institutions capable of enforcing human rights standards as embodied in international laws and conventions (Henkin 1990).