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2016

A History of Lawyers

Introduction to the dossier
Marie Houllemare
Traduction de François-Xavier Priour
Cet article est une traduction de :
Histoire des avocats [fr]

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Plaidoirie de la première femme avocate en cours d’assises, 25 septembre 1908Afficher l’image
Crédits : France, Paris, Bibliothèque nationale de France, département Estampes et photographie, EST EI-13 (23)

1This thematic dossier is focused on the ambiguities, tensions, and contradictions that pervade the history of the lawyer profession. Surely there is no better way to open it than evoking the founding figure of Cicero, who gave his first famous speech, Pro Roscio Amerino, in defence of a man accused of having murdered his own father. Obviously, such an abhorrent crime required exceptional defence, yet the young lawyer prevailed, thanks to his oratory prowess. Many years later, in his treaty De Officiis (II, 14), the now-famous Cicero reflected on this case, emphasizing key aspects of the lawyer’s trade in his view:

  • 1 M. Tullius Cicero. De Officiis (II,14), with An English Translation by Walter Miller. Cambridge. Ha (...)

2“Again, the following rule of duty is to be carefully observed: never prefer a capital charge against any person who may be innocent. For that cannot possibly be done without making oneself a criminal. […] And yet, while we should never prosecute the innocent, we need not have scruples against undertaking on occasion the defence of a guilty person, provided he be not infamously depraved and wicked. […] It is always the business of the judge in a trial to find out the truth; it is sometimes the business of the advocate to maintain what is plausible, even if it be not strictly true […]. Then, too, briefs for the defence are most likely to bring glory and popularity to the pleader, and all the more so, if ever it falls to him to lend his aid to one who seems to be oppressed and persecuted by the influence of someone in power. This I have done on many other occasions; and once in particular, in my younger days, I defended Sextus Roscius of Ameria against the power of Lucius Sulla when he was acting the tyrant. The speech is published, as you know1.”

3Both an orator and an author, Cicero mentions several principles that are a constant challenge to the lawyer: defending successfully by way of eloquence, shielding innocence from tyranny, but also guaranteeing any defendant, however guilty, the right to be defended, presenting a plausible (though not necessarily truthful) version of the facts, seeking glory and recognition from the public, guarding against accusations of cynicism – thorny issues for lawyers, torn between the defence of their client, the dynamics of the judiciary, and their own career interests. This dossier aims to explore how these concerns play out in various societal and political contexts.

  • 2 Lucien Karpik, Les avocats. Entre l’État, le public, le marché. XIIIe-XXe siècle, Paris, Gallimard, (...)
  • 3 Loi n° 2015-990 du 6 août 2015 pour la croissance, l'activité et l'égalité des chances économiques.

4Our first theme deals with the social status and conditions of exercise of the legal profession. In early modern France, for example, many individuals claimed to be avocats en parlement (lawyer in parliament), implying that they had the required qualifications. However, few of them actually made a living as lawyers, and those who did were called avocats au parlement (lawyers at the parliament). Being recognized as a lawyer offered social benefits, it was a stepping stone and an occupation, it meant one had received an education and possessed social status – all a once. Our understanding of this social-professional positioning has been fundamentally modernized since the seminal works of Lucien Karpik and Hervé Leuwers2. Two key dimensions may be identified at the core of this ever-changing professional and social identity: a claim for a particular form of nobility, and an ethic of selflessness. Slowly, the trade took shape, especially over the 16–18th century period. One key moment in this evolution that gradually came to define the scope of the lawyer’s legitimate remit was the organization in bar associations. The decree of 1920, for instance, prohibited the use of the title by anyone who was not a bar member. However, the Macron law of August 2015 rekindled a heated conversation about what exactly constitutes the legal profession3. Throughout the 20th and 21st centuries, studies on the trade mostly focused on contrasting the traditional and the entrepreneurial models—somewhat mirroring the opposition between the personal legal services bar and the corporate bar. However, the history of other types of organizations, such as firms, non-profits, and public defenders’ offices, remains to be written.

5The second aspect that needs to be explored is the specific position of lawyers among jurists. Acting as they are as the go-betweens and even the “translators” of law, their relationship to judges and court officers is a complex one. Lawyers appear to be essentially urban legal actors, while others tend to be more engaged in addressing the judicial needs of court users in rural areas—not necessarily in formal settings.

  • 4 See Austin Sarat and Stuart Scheingold (dir.), Cause Lawyering: Political Commitments and Professio (...)

6As practitioners, they may also be involved in judicial formalization and legislative evolution. Research about lawyers often focuses on the tension between law and politics. This topic has proven extremely fertile ever since the themes of cause lawyering were introduced in French-language studies, triggering intense discussions4. The cause lawyer may be defined as someone who decides to use their legal skills to advance social and political objectives, as opposed to the sole interests of their clients. In this perspective, new research topics have emerged, as lawyers considered left-wingers became an object of study. Studying the profession through the lens of fringe politics opens the possibility of revisiting the links between two questions that may appear independent but are in fact considered to be interconnected: the lawyer-client relationship, on the one hand, and the political engagement of the lawyer on the other. The risk with this approach, however, is to minimize the importance of rhetoric for understanding strategies of legal generalization: the figure of the engaged lawyer should also be apprehended as one form of argumentative mobilization among others. The engagement of lawyers in society through their involvement in the judicial process is a constant of the profession, one that considerably predates the emergence of class action strategies and cause lawyering. This is because lawyers are wordsmiths before anything else – the most prestigious among them even being considered universal oratory role models. Therefore, the history of great lawyer figures, such as Cicero, the status of their word within and outside the proceedings, and the evolution of judicial rhetoric are major angles for analysis. These should be compared with the written output of lawyers, which takes many forms (memoirs, facta, literature, etc.) and has many uses, either legal or political, yielding a potentially fruitful research field.

7Additionally, while political commitment seems to be perceived as rather self-evident in the lawyer’s identity, their economic engagement, on the contrary, is constantly being questioned. Client mistrust towards legal experts may be furthered by researchers when they emphasize the importance of symbolic barriers that aim to isolate the judicial field, thereby asserting the legitimacy of the law, the judicial process, and lawyers themselves. Still, the rationales and effects of bans on lawyers, for example in New France throughout the 17th and 18th centuries, remain to be explored.

8At the end of the day, lawyers seem to stand at the intersection of social and institutional history, of justice and politics, of law and literature. The present dossier is open to any works aiming to either shed more light on these aspects or shift the focus on new perspectives—comparative perspectives in particular, for instance the effects of the recent and massive feminization of the profession, or those of the internationalization of the lawyer profession.

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Notes

1 M. Tullius Cicero. De Officiis (II,14), with An English Translation by Walter Miller. Cambridge. Harvard University Press; Cambridge, Mass., London, England. 1913.

2 Lucien Karpik, Les avocats. Entre l’État, le public, le marché. XIIIe-XXe siècle, Paris, Gallimard, 1995 et Hervé Leuwers, L’invention du barreau français (1660-1830). La construction nationale d’un groupe professionnel, Paris, EHESS, 2006.

3 Loi n° 2015-990 du 6 août 2015 pour la croissance, l'activité et l'égalité des chances économiques.

4 See Austin Sarat and Stuart Scheingold (dir.), Cause Lawyering: Political Commitments and Professional Responsibilities, New York, Oxford University Press, 1998; Id., Cause Lawyering in A Global Era, New York, Oxford University Press, 2001; Id., The Worlds Cause Lawyers Make, Stanford, Standford University Press, 2005. See the works of Liora Israël for the transmission of these themes into French, esp. Liora Israël, “Usages militants du droit dans l’arène judiciaire : le cause lawyering,” Droit et Société, 49-2001, pp. 793-824 and “Quelques éclaircissements sur l'invention du cause lawyering. Entretien avec Austin Sarat, Stuart Scheingold”, Politix, vol. 16, n°62, 2003, p. 31-37.

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Référence électronique

Marie Houllemare, « A History of Lawyers »Criminocorpus [En ligne], Histoire des avocats, mis en ligne le 14 juin 2016, consulté le 26 novembre 2022. URL : http://journals.openedition.org/criminocorpus/12129 ; DOI : https://doi.org/10.4000/criminocorpus.12129

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Auteur

Marie Houllemare

Marie Houllemare est agrégée d’histoire et maître de conférences en histoire moderne (Université d’Amiens / Institut Universitaire de France).

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