Lawyering and Legitimation - Palestinian Cases before the Israel Supreme Court

The Law & Society Institute Berlin (LSI) cordially invites you to a public lecture delivered by Hassan Jabareen, LL.M.

Abstract: Current theoretical literature emphasizes two dominant perspectives regarding the role of lawyering. Relying on Max Weber, the starting point of the first perspective is that legal systems rationalize state authorities. Scholars affiliated with the Critical Legal Studies approach claim that since law shapes our consciousness and due to professional constraints, lawyering contributes to legitimizing existing power relations. The margins of any public order are wide enough to allow the Court to sometimes accept victims' claims; however, in these cases, the Court also justifies the public order. Thus lawyering may put victims' struggles under risk, as it cooperates with constituting a false consciousness of impartiality and fairness.

The second perspective, which is affiliated with the Law and Society approach, rejects the top-down methodological analysis. It contends that any examination of the role of lawyering should start from the bottom-up, moving from society to the law. Based on empirical research, scholars who take this approach argue that �cause lawyers�, lawyers who defend civil rights causes, in fact empower victims' struggles and contribute to social change. These lawyers are not constrained by the profession's limitations, they push and challenge boundaries, and their functions go beyond formal representation to supporting victims' causes.

I will contend that these two divergent perspectives do not adequately account for the complexity of lawyering in conditions of ethnic/national conflict, or for how such conditions of conflict shape identities of belonging. While the judiciary may possess the victims' trust and litigation may itself legitimize the public order, one cannot conclude as a consequence that the victims will also perceive the public order as legitimate, regardless of what lawyers do in court. Further, these two perspectives neglect the role of the international arena, which is dominant in such conflicts. This arena may also turn the subject of legitimation itself into a more complex question. I will suggest that legitimacy under ethnic/national conflicts is not a matter of causality: it neither depends on local legality or on the efficacy of cause-lawyers.

To make my point, I will examine the public effect of two major litigation cases that were brought before the Israeli Supreme Court and which challenged two different public orders. One case was initiated by Palestinians living under Israeli Occupation; the other concerned the Palestinian citizens of Israel. Although focused on cases argued before the Israeli Supreme Court, the discussion will also draw upon comparative research.