Introduction

Widespread prejudice against lawyers often reflects the disjuncture between law and justice. As the four local representatives at the "Conference on Local Peoples and Lawyers: Building Alliances for Policy Change" confirm, the prejudice is worldwide and manifests itself in a variety of ways. Vicente Murrain, a longtime Afro Colombian promoter of rural development flatly asserts that, "Most Colombians believe lawyers are dishonest .... They are considered part of the problem when they could be part of the solution." Lawrence Mavundla, a South African street hawker laments that, "The lawyers we saw could not understand the hawkers' case .... They accepted the law as legitimate, whereas we felt it should not have been there in the first place." He further notes, "Lawyers were charging us fees but no tangible results were achieved." In the Philippines, Julie Cabato, chairperson of a local organization struggling to gain legal recognition of her indigenous community's ancestral-domain rights observes, "[D]istrust of lawyers is a main reason for not hiring one." She adds that many people, "simply cannot afford the services of a lawyer."

These perceptions and valuable experiences and analyses are found within the four two-part (client/lawyer) case studies that were originally presented in 1994 at the Conference on Local People and Lawyers and are published in this book. They highlight the simple but profoundly unfortunate fact that most people in the world have little, if any, effective access to lawyers or national legal processes. I sometimes muse whether the noble statement etched in marble above the entrance to the U.S. Supreme Court, "Equal Justice for All," should be amended to add five more words: "Who Can Pay For It." And, of course even those who can afford to hire lawyers often find themselves trapped in endless streams of litigation, delay, and rising costs.

In the United States, the disjuncture between law and justice is often exacerbated by the adversary system and the role that lawyers play in it. During the three to four year acculturation process known as "law school," students are repeatedly taught that in the Anglo-American legal tradition, the role of a lawyer in not to judge a client's guilt or innocence, or necessarily even to ascertain whether a client is telling the truth or deserves some form of redress. Instead, law students are taught that a lawyer's job is to assert and protect a client's legal rights zealously. This reflects a deeply embedded belief that truth is best discerned, and justice served, in an adversarial process that, however flawed, is better than any other heretofore developed alternative.

The benefits of the adversary system often come at high personal costs. Lawyers frequently are professionally obliged to set aside their own personal ethics and values in order to serve their clients. This is less of a problem when lawyers work in the public interest. Public interest lawyers are less pressed to become philosophically or professionally divorced from efforts to link law to justice and to provide legal access to aggrieved parties who are materially poor.

Public interest lawyers are a special breed. They often challenge and undermine existing laws that promote injustice, and they devote their professional energies in service to social goals that are broader than those of the typical private fee-paying client. The four lawyers who participatedin this conference are eloquent examples of public interest lawyers trying to bind law to justice and to make law more reflective and responsive to local people's rights and aspirations. They are atypical of the legal profession. Much of their work is unconventional and does not involve litigating cases in court. All four are practitioners who strive to manipulate legal and policy-making processes -- against considerable odds -- in their respective countries. Each has used law to promote outcomes that are more responsive and favorable to the local people they represent and with whom they work.

Their participation, and that of the four representatives of the local people and communities on whose behalf these lawyers have worked, provides us with a unique opportunity to pause and reflect on how local people who happen to be materially poor and politically disadvantaged are affected by and deal with the myriad laws, policies, and regulations that emanate out of national capitals around the world. The four representatives of local people also provide a key to a better understanding of how local people and lawyers can help direct policy in a more fair and relevant direction.

An important, albeit unstated, element in all four stories of productive and positive lawyer- local people relationships is humility. Lawyers and other professionals working on grassroots levels need to recognize and appreciate that their clients also possess important knowledge and skills. More important, is the need to always remember that they work for their clients and the clients are in charge. State Representative Polly Williams, architect of the politically contentious Wisconsin Parental [School] Choice Program, insisted that her attorney, Clint Bollick, accept and work within parameters set by her and her allies. Mr. Bollick listened and agreed. Their relationship and that of the three others described at the conference highlight and affirm the importance of a lawyer's task to make certain that his or her clients have the best information available to make good decisions, and then to assist in seeing that those decisions result in the best possible outcomes for people or cause being served.

As the noted critical legal theorist Roberto Unger has stressed, we are context-bound and context-creating people. Our task, in Unger's words, is to "construct not just new and different social worlds but social worlds that more fully embody and respect the creative power whose suppression and attainment all societies and cultures seem to require." That is the task of public interest lawyers working on behalf of local people.

Public Interest Lawyers

In developed countries, as well as in some developing countries, such as the Philippines, Columbia and South Africa, a small number of lawyers are at the forefront of efforts to challenge the status quo and promote a democratic and just distribution of power and wealth, as well as other values. They typically work for public interest law nongovernmental organizations (NGOs), although sometimes government lawyers are involved, as is the case for Carlos PiZo, a Colombian lawyer participating in this conference. The existence and activities of public interest lawyers in a particular country indicate the presence of political pluralism and democratic space. They also indicate whether there is the freedom – albeit often constrained – to foster new perspectives and strategies for addressing the concerns and potentials of poor people, who in most developing countries comprise well over half of the national population. Their presence reflects the long-standing failure of national laws and policies to appreciate or respond to the concerns and potentials of citizens who are materially poor and otherwise disenfranchised.

In some countries, e.g., South Africa during apartheid, governmental regulation of civil society undermines efforts to promote public interest law and foster partnerships between local people and lawyers. Controls over legal rights to assemble, organize, petition and monitor governments, register as organizations and open bank accounts, to access information, and to ensure transparency in public policy making are among the most effective means for governments to stifle criticism and advocacy. Securing these rights is the goal of public interest law.

Public interest law, in a broad sense, refers to an array of legal services that are provided to diffuse interests such as poor and disadvantaged rural communities, as the case studies from the Philippines and Colombia describe. It also often includes legal assistance to special causes such as promoting consumer-rights, environmental safety, and gender equality. Legal assistance to promote small vendor's rights as in the South African case study, or inner city Milwaukee parents trying to improve the quality of their children's education are other examples.

In all four case studies presented here public interest lawyers played a key role in helping to bring the concerns of distinct, politically marginalized constituencies into national policy- and law- making processes. In all four case studies, some success is reported. It should be noted, however, that the overall legal predicament of politically and economically marginalized people in most countries is not good, which is a key reason why the case studies presented at this conference provide important lessons to lawyers who aspire to bind law to justice in far reaching ways, and to local people.

It is also important that "public interest law" be defined and understood in a way that, at least, factors in the rights, claims, and aspirations of all the citizenry, and in particular those who are weak and adversely affected by specific state action or inaction. In negative terms, the public interest should never be defined solely in reference to the potential of political and economic elites, whether domestic or foreign, who profit from state action or inaction. This occurs all too often in many countries where political and economic elites – often under the guise of nationalism – use the authority and power of the nation-state to enrich themselves and their families and friends.

Nations-States and Lawyers

Part of the challenge lies with the professional focus of lawyers on nation-states (as well as states in federal systems such as the United States and India). Contemporary national laws invariably emanate from capital cities and reflect an elite, urban perspective. As attorney Marvic Leonen observes in his paper, national law, "in both content and process, articulates only a dominant perspective."

There is a nascent but growing realization that nation-states are beginning to undergo a profound transformation and are not likely to endure as we know them today. Paul Kennedy in his book, Preparing for the Twenty-First Century, devotes an entire chapter to the uncertain future of nation-states. Kennedy concludes that the autonomy and functions of nation-states are being eroded by transnational trends concerning the growth of vast pools of private capital that flow daily around the world in search of short-term profits, as well as by growing numbers of refugees and migrants, many forced to relocate because of ever more serious environmental degradation.

Despite these unprecedented trends, nation-states and the laws and regulations they generate still provide the primary arenas and tools for lawyers. As such, they are an important focal point of local people and public interest lawyers trying to build alliances for change, as the four case studies show. But other laws, such as the indigenous laws of the Ibaloi of the Philippines or the Afro- Chocoanos in Colombia, are also important and merit attention. It behooves us to keep in mind that nation-states are not the sole source of law. Each of us has the potential to be creators and enforcers of normative legal standards. Indeed, at least once every semester I share the belief with my students that wherever two or more humans are gathered together, we can find law.

I doubt whether most lawyers would agree with such a broad, multidisciplinary perspective on law and legal process. Nevertheless, many lawyers would agree that laws exist and function on various levels, and that some laws originate locally and are community-based. The Philippine and Colombian cases studies highlight this important fact with their focus on efforts to secure recognition from the national legal system of community-based property rights that emanated from local, traditional legal systems. In other words, we should not only look to legislatures, courts, and other governmental institutions as sources of law. We should sometimes also look to traditional communities that have regulated their internal affairs for generations, often with minimal state involvement. (It should be noted that the focus of law and society scholars has moved steadily downward to more local levels.)

Ignorance and the Legal Elites

Ignorance of local people and alternative sources of law are commonplace within the legal profession. This ignorance is not only of rural peoples, as the plights of South Africa's urban street hawkers and Milwaukee's inner city families demonstrate. This ignorance is deepened and reinforced by an entrenched over-emphasis on training law students to pass the bar, and an under-emphasis on preparing them to be broad-minded and enlightened leaders.

In most nations, legal education tends to emphasize unitary and hierarchical interpretations of legal codes and statutes. There is usually little, if any, discussion of contrary interpretations or minority views. This approach reflects the Western civil code traditions that originated in the Roman Empire and still predominate in Spain, Portugal, France and their former colonies, as well as in other nations such as the Kingdom of Thailand, that emulated its colonized neighbors. It is justified to ensure that law school graduates succeed on bar examinations. During the process of preparation for the bar, law students are typically trained to view legal norms and processes uncritically. Rarely, if ever, are students prompted to inquire into the origins, premises, or on-the-ground impacts of a given law. Nor are they encouraged to reflect on more desirable alternatives. Instead, students are taught to accept existing national laws as a given and to assume that only lawyers are qualified to interpret and analyze them.

Meanwhile, most lawyers and law professors cling to a narrow view of legal practice. Twentieth-century advances in legal thought which expose the policy implications behind legal norms and processes are beyond the scope of most law courses. The relatively small number of law students, especially those in developing countries, exposed to courses on legal theory and legal philosophy, often spend an inordinate amount of time examining the works of Western thinkers who tend to view law as a priori, universal reality which need only be discerned and logically extended.

The usually unarticulated premise of this approach is that Western laws – including those enacted in former colonies and which still endure today – are essentially value-neutral updates of universal legal truths first discovered by the Greeks and Romans. The uncritical perpetuation and often further refinement of unjust colonial laws was, and continues to be, abetted by the notable absence of any sustained, ideological debate within the legal profession or among nation's political elites, at least in much of Asia.

Disdain and indifference towards local peoples is evident in the legal professions of many countries. Yet, except possibly for the growing influence of economists, lawyers have long been the dominant policy-making group within these countries. Despite their political preeminence, few lawyers have yet produced any in-depth critique of state laws and policies which pertain to the allocation of power and wealth. Little effort has been invested in the study of legal history, legal anthropology or sociology, or law and economics, especially in fields that impact the rights and duties of impoverished majorities.

An inevitable outcome of this inaction and inertia is that the undemocratic origins, evolution, and effects of many contemporary laws and legal concepts are not known or understood by lawyers and other policy-makers. It is no exaggeration, therefore, to characterize the legal profession in many countries as being permeated by a political economy of ignorance which enables the profession to separate law and justice and overlook the conservative and elitist nature of the national legal system.

"Ignorance" often precludes serious debate as to why many existing laws have undemocratic origins and impacts. In a more profound sense, ignorance blinds people to the need for a broad-based inquiry as to whether colonially constructed nations and legal systems can ever possess the conceptual and structural capacity, as well as the grandness of vision, to encompass the many heritages, values, rights, and aspirations its nation's materially impoverished possess.

Conclusion

The four two-part case studies presented here directly challenge the legal profession's political economy of ignorance. They demonstrate that law need not be distinct from justice. It should be noted, however, that in far too many places around the world the legal predicaments of local people and their advocates continue to worsen rather than improve. This sad fact highlights the importance of the conference and this publication. It provides a perspective that, in the words of Marvic Leonen, "forces us to come to terms with the myth of law and the reality of peoples as well as their cultures."