Cause lawyers as legal innovators with and against the state: Symbiosis or opposition?

• Published date: 01 September 2008
• Pages: 203-231
• Date: 01 September 2008
• DOI: https://doi.org/10.1016/S1059-4337(08)45006-8
• Author: Patricia J. Woods,Scott W. Barclay

CAUSE LAWYERS AS LEGAL

INNOVATORS WITH AND AGAINST

THE STATE: SYMBIOSIS OR

OPPOSITION?

Patricia J. Woods and Scott W. Barclay

ABSTRACT

The traditional and most common conception of cause lawyers has viewed

them as necessarily oppositional to the state, leftist, and, at best,

transgressive. This conception is significant to our analysis because of its

tendency to treat ‘‘thestate’’ as a rather singular arena of power – an ‘‘it’’–

rather than a multi-dimensional entity made up of competing institutions

and personnel. Following work on the disaggregated and embedded state,

we suggest that conflict and competition among state institutions and state

personnel allow cause lawyers and state actors to engage in mutually-

beneficial action in service of their agendas. Litigation has important

benefits for both cause lawyers and state actors: within the arena of law,

processes that usually require the backing of large constituencies in the

context of majoritarian institutions require, instead, convincing legal

arguments. We briefly present evidence from two highly disparate cases of

similar processes of interaction among cause lawyers and state actors in

Vermont and Israel, which we believe indicates that this type of interaction

is far from idiosyncratic.

Studies in Law, Politics, and Society, Volume 45, 203–231

Copyright r2008 by Emerald Group Publishing Limited

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1016/S1059-4337(08)45006-8

203

At its core, the late modern nation-state has sought to portray itself as

infinitely powerful: the single legitimate locus of decision-making on a host

of issues relating to its society, a unitary, mysterious entity that no

individual can know and understand fully (Mitchell, 1988). The nation-state

has used both ideological and practical tools in continuing attempts to make

itself, in practice as well as image, the most salient rule-maker. These

attempts have never been entirely successful; contest, dissent, and

opposition have been present to varying degrees (McAdam, Tarrow, &

Tilly, 2001;Skocpol, 1979). Nonetheless, nation-states have claimed to be

the appropriate decision-making representative for the people, or ‘‘the

nation,’’ in matters of internal and external security, and a broad array of

social and cultural practices, including education, official language, official

religions or official secularism (Anderson, 1991;Gellner, 1983;Rhoodie,

1984;Robert, 2003), as well as far more specific practices at work at the

local and individual levels, such as marriage and family law (Durkheim in

Simpson, 1965, p. 530; Bourdieu, 1987, pp. 846–847; Woods, 2004;

Diamant, 2004).

Some of the most powerful ideological claims placing the state at the

center of decision-making for society include the claim to the legitimate

monopoly of violence (Weber, 1965). This ideological and theoretical

support for a state-centered political system has been so successful that it

has become naturalized not only in many scholars’ understanding of

modern politics, but in the popular sphere as well.

Today the relationship between violence and the state is an especially intimate one.

In the past, the most varied institutions yhave known the use of physical force to be

quite normal. Today, however, we have to say that the state is the human community

that (successfully) claims the monopoloy of the legitimate use of force within a given

territory y. Specifically, at the present time, the right to use force is ascribed to other

institutions or to individuals only to the extent to which the state permits it. Hence,

‘‘politics’’ for us means striving to share power or striving to influence the distribution of

power, either among states or among groups within a state. (Weber, 1965, p. 1; emphasis

in original)

In addition to such ideological efforts, late-modern states have gone to

great ends to extend the knowledge and institutional reach of the state

through enforced practices. James Scott has eloquently elaborated many of

these new practices aimed at culling information to make it easier for a

central state to rule (and extract) from afar. A few important examples

include requiring the entire population to adopt surnames, systematizing

weights and measures, and enforcing new rules of land tenure that would be

comprehensible (or legible) to state officials not privy to local knowledge

PATRICIA J. WOODS AND SCOTT W. BARCLAY204