A texture of Legality: The Legal Profession in South Africa, V 1



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A Texture of Legality: The Legal Profession in South Africa, v 1

Presentation at Law’s Locations: The Textures of Legality in Developing and Transitional Societies, organized by the Research Circle on the Role of Law in Developing and Transitional Countries, held on 23-25 April 2010, at the University of Wisconsin-Madison

Jonathan Klaaren, School of Law, University of the Witwatersrand, Johannesburg (jonathan.klaaren@wits.ac.za)

Introduction

This presentation moves towards a contextualized analysis of the working of the legal profession in South Africa. Such an analysis might well challenge some conventional understandings and forge new knowledge about law actually works in developing and transitional countries. In line with the thrust of Law’s Locations workshop, three emphases will be kept in mind: first, the presence and immanence of the legal profession in the daily lives of persons; second, the available movement between and the engagement with plural legal orders including global ones (see e.g. Berman 2007, Goodale and Merry 2007); and third, the way in which the profession is shaped through the course of its history.

First, I argue that what we know about the legal profession in South Africa has been in a sense over contextualized, indeed skewed. Second, I show that work on the South African legal profession is only now beginning to emerge but that such work is indeed happening from several different angles. Third, this presentation will outline what more we should know. While the literature is too extensive and diffuse to adequately survey in the course of preparation for this presentation, this outline aims to contribute towards such a survey.

Point One

What we know about the legal profession in South Africa has been in a sense over contextualized, indeed skewed. This is partly due to a gap in the literature. South Africa has been missing from the standard historical comparative work on the legal profession. The extensive work of Richard Abel is a clear case in point here. Despite Abel’s careful and formative attention to South Africa in his Politics by Other Means (1995), the country is missing from his historical and comparative work (Abel 1988a, 1988b)! Even taking into account Pruitt’s careful study (2002) and Chanock’s chapter on the profession in the early 20th century(Chanock 2001: 221-240), there seems nothing on South Africa to compare with Abel’s work on the English legal profession (Abel 2003).

Furthermore, what attention to the legal profession there has been has largely focused on two issues: representation in the profession and the role of law with respect to apartheid. With respect to representation in the profession, the attention has been largely to issues of transformation understood in terms of race (Pruitt 2002, Godfrey 2009) with some but lesser attention being paid to gender. On the question of the role of law in respect of apartheid, the lawyers have certainly come in for some examination (White 1988, Broun 1999), but the bulk of scholarship on lawyers under apartheid has been of a jurisprudential nature (Budlender 1988, Dyzenhaus 1998), even where such analyses have explicitly valued everyday lawyering as well as impact cases (Budlender 1988). Likewise, Meierhenrich’s account of anti-apartheid lawyering attends particularly to the effects of such lawyering on the legitimacy of the legal system (Meierhenrich 2008: 208-217). Combining these two concerns, Albie Sachs presented a short pen portrait of ‘Brown and Black Lawyers in Action’, including accounts of the Treason and Rivonia Trials (Sachs 1973: 205-229).

So, one question to pose is why did this skew in the literature happen? To some extent the work in these two strands – representation and the role of law in apartheid -- has stood in for contextualized historical comparative accounts of the legal profession. We see here an example of the pull of the policy audience (Sarat and Silbey 1988). There is a further factor arguably operative as well. Further, there are two sources of scholarship on the legal profession in comparative jurisdictions that are missing in SA. One comparable source for literature on the legal profession is state funding for empirical research on the administration of justice. The UK provides a clear contrast with South Africa on this score, where the policy audience itself has historically been weak (but see Law Society of South Africa 2008). However, this distinction may be lessening with the greater involvement of national competition authorities (including those of South Africa) in assessing and regulating the markets for legal services (Abel 2003, Competition Authority 2006, Competition Bureau 2007). The second is the lack of substantial and sustainable nationally focused sociolegal scholarship. South Africa does not currently have a similar organization to the UK Sociolegal Studies Association or the American Law and Society Association.

This point regarding the literature on the legal profession clears the ground to engage with the concerns of the workshop, to locate the legal profession in South Africa.

Point Two

Historically grounded and comparatively aware work on the South African legal profession is only now beginning to emerge but such work is indeed happening from a few different angles. One angle updates and builds on the apartheid-era concerns with demographic representation and the role of law and lawyering. One study has extended the transformation concerns into issues of skills development and transfer as well as racial and gender representation (Godfrey 2009). Another study has investigated representation trends and dynamics within different segments of the legal profession (Shefer-Prahm and Klaaren, 2010). Other work has emphasized the perspective of systemic access of justice (AfriMap 2005, Klaaren 2009). From this access to justice angle, some work has directly argued for professional policy innovations, such as the successful call for a system of public defenders (Ogletree 1995). A final theme takes the role of law under apartheid in a different direction, investigating postapartheid lawyering from the perspective of legal mobilization (Dugard 2008, SAJHR 2010). This work has not yet but might fruitfully engage with the question of transplanting the American public interest litigation paradigm to South Africa and developing countries (Hershkoff 2009, Ellmann 1998, Oko 2004).

Another angle is that of history. Any thick historically rooted description of the legal profession in South Africa will be indebted to Martin Chanock’s work on the development of legal culture from 1902 to 1936 (Chanock 2001: 221-240). Focusing on the profession’s struggle for status and income, Chanock treats topics such as status and competition, the formalist voice of the profession, the profession and the public, and access by Africans to legal services. Indeed, Chanock concludes that “there were … many ways of being a South African lawyer in this period, and many ways of imagining what that might mean” (Chanock 2001: 240).

A third angle is only beginning to emerge and constitutes research framed in terms of South Africa’s participation in the global market for professional services (Klaaren 2007, 2009). Here, the legal profession is beginning to be analyzed in terms of skills (Godfrey 2009) and the South African legal services market is unlikely to be an exception. One particular focus for this research has been and is likely to continue to be the Legal Practice Bill (Department of Justice and Constitutional Development 2009).



Point Three

Despite the work to date and the research that is currently emerging, there is much more that we should know in order to locate the legal profession in South Africa. What should be on the research agenda towards a contextualized study of the South African legal profession? The following is a non-exhaustive set of items.

To begin with the question of representation, Lisa Pruitt’s work provides a bridge to exploring the dynamics of representation in the profession (Pruitt 2002). Indeed, as the best contemporary investigation into the question of black representation in the profession, the interviews Pruitt conducted as well as her secondary research into questions of remuneration, firm structure, and candidate attorney training could well be profitably updated from her research period of 1999-2000. While Pruitt has drawn on earlier work of Wilkins and Gulati (Pruitt 2002: 597-602), one could additionally investigate the dynamics of the black corporate bar itself (including its relationships with clients) (CASE 2008) as well as investigate the trajectories of early career lawyers, the latter akin to the Harvard Legal Professions Project research project on After the JD.

Not far from such a start is a profession-wide question that is not being addressed: that of big firm competition and increasing intra-profession inequality. In parallel with the increasing inequality in general South African society, the legal profession has recently seen concentration a the top and a consequent increase in the gulf between the top and the bottom of the profession. Both the national gap and the development of arguably divergent practices in the circle of elite law firms bear investigation (Liu 2006). Another question that is also raised in the context of elite corporate practice, at the least, is that of legal outsourcing, as for instance investigated in India (Ballakrishnen 2009).

Expanding the focus beyond the practicing profession, attention for future work may well be directed at the institutional stepchildren of the legal profession: legal education as well as government lawyering. The persistent object of study, legal education is currently undergoing examination from methods including those of critical discourse analysis (Humby in progress), reflective clinical legal education (Mahomed in progress), and quantitative surveys on perceptions of legal education within the profession as currently being conducted by the Council on Higher Education at the request of the Law Deans. Future work on government lawyering could expand beyond the units of the prosecutors and the new Legal Aid Board to also examine more in-house forms of government lawyering practice.

Picking up on the theme of historical contextualization, large scope exists to move from the current macro histories to the micro level. One example could be a thick contextualization of a controversial talk given by a prominent advocate such as Wim Trengove at UCT in the wake of the Hlophe and Zuma controversies. In another tack, one could explore the roots of a specific field of law, such as administrative law, in a set of sector specific dynamics, such as those obtaining in immigration, where several different bureaucracies attempting to regulate the mobility of various populations.

Finally, as the media is having a field day with a number of questions of ethics, a fruitful line of inquiry could well be to explore legal ethics and their construction in everyday practice (Liu 2006). In a recent prominent example, newspapers have reported on the actions of a highly respected government lawyer soliciting a five million rand bribe (Independent Online 2010).

References

R Abel, 1995. Politics By Other Means? Law in the Struggle Against Apartheid, 1980-1994 (Routledge)

R Abel, 2003. English Lawyers Between Market and State: The Politics of Professionalism (Oxford)

R Abel and P Lewis (eds), 1988a. Lawyers in Society: The Civil Law World (University of California Press)

R Abel and P Lewis (eds), 1988b. Lawyers in Society: The Common Law World (University of California Press)

AfriMAP, 2005. South Africa: Justice Sector and the Rule of Law.

S Ballakrishnen, 2009. “I’m calling my lawyer (in India!)” : Legal Process Outsourcing and the layered liberalization of the Indian legal profession (unpublished paper delivered at Law and Society Annual Conference, May 31, 2009, Denver)

P Berman, 2007. ‘Global Legal Pluralism’ 80 Southern California Law Review 1155

KS Broun, 1999. Black Lawyers White Courts: Soul of South African Law (Ohio University Press)

G Budlender, 1988. ‘On Practising Law’ in H Corder (ed) Essays on Law and Social Practice in South Africa (Juta) 319-333

CASE, 2008. ‘Perceptions of the Progression of Black Commercial Lawyers’ (presentation at Black Commercial Lawyers Summit, University of the Witswatersrand, 4 March 2008)

M Chanock, 2001. The Making of South African Legal Culture, 1902-1936: Fear, Favour and Prejudice (Cambridge University Press)

Competition Authority, 2006. Competition in Professional Services: Solicitors and Barristers (Ireland)

Competition Bureau, 2007. Self-Regulated Professions: Balancing Competition and Regulation (Canada)

Department of Justice and Constitutional Development, 2009. Legal Practice Bill, Draft 1A (August 2009).

J Dugard, 2008. ‘Rights, regulation and resistance: the Phiri Water campaign’ (2008) 24 South African Journal on Human Rights 593

D Dyzenhaus, 1998. Judging the judges, judging ourselves: Truth, reconciliation and the apartheid legal order (Juta)

S Ellmann, 1992. In a time of trouble : law and liberty in South Africa's state of emergency (Clarendon)

S Ellmann, 1998. ‘Cause Lawyering in the Third World’ in A Sarat and S Scheingolds (eds) Cause Lawyering: Political Commitments and Professional Responsibilities (New York: Oxford University Press) 349

S Godfrey, 2009. ‘The Legal Profession: Transformation and Skills’ 126 South African Law Journal 91

M Goodale and S Merry (eds), 2007. The Practice of Human Rights: Tracking Law Between the Global and the Local (Cambridge University Press)

P Harris, 2009. In a Different Time (Umuzi)

H Hershkoff, 2009. ‘Public Law Litigation: Lessons and Questions’ 10 Human Rights Review 157-181

Independent Online, 2010. ‘Nthai guilty of R5m bribe bid’ (Louise Flanagan, 9 April 2010, available at www.iol.co.za)

J Joffe, 2007. The State vs. Nelson Mandela : the trial that changed South Africa (Oneworld)

J Klaaren, 2009. ‘Legal Profession Issues Paper’ (unpublished, 8 January 2009)

J Klaaren, 2007. ‘Competition Law and the Legal Profession in South Africa: A Case of Special Pleading?’ (unpublished paper, 21 May 2007)

Law Society of South Africa, 2008. National Survey of the Attorneys Profession (September 2008)

S Liu, 2006. ‘Client Influence and the Contingency of Professionalism: The Work of Elite Corporate Lawyers in China’ 40 Law and Society Review 751-782.

J Meierhenrich, 2008. The Legacies of Law: Long-Run Consequences of Legal Development in South Africa, 1652-2000 (Cambridge University Press)

CJ Ogletree, 1995. ‘From Mandela to Mthwana: Providing Counsel to the Unrepresented Accused in South Africa’ 75 Boston University Law Review 1

O Oko, 2004. ‘The Problems and Challenges of Lawyering in Developing Countries’ 35 Rutgers Law Journal 569-573

L Pruitt, 2002. ‘No Black Names on the Letterhead? Efficient Discrimination and the South African Legal Profession’ 23 Michigan Journal of International Law 545-676

A Sachs, 1973. Justice in South Africa (University of California Press)

A Sarat and S Silbey, 1988. ‘The Pull of the Policy Audience’ 10 Law & Policy 97-166

O Shefer-Prahm and J Klaaren, 2010. ‘Just How Transformed is the Legal Profession in South Africa?’ (unpublished paper, April 14 2010)



South African Journal on Human Rights, 2010. Call for Papers: Special Issue on Public Interest Litigation in South Africa

L White, 1988. ‘To Learn and Teach: Lessons from Driefontein on Lawyering and Power’ 1988 Wisconsin Law Review 699

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