Edit Vigh

Recommendations for Emplacing Activist Lawyers in the Legal Profession



I.      Civil defense of rights in Hungary


The aim of my study[1] is to find an answer to the following question: how can civil defenders of rights be placed within the structure of the legal profession.

In the last 20 years a trend has started which indicates that civil defense of rights has become a profession. That is to say, it can be practiced as a main trade and can provide a livelihood. The task of civil organizations is to call attention to problems in the legal system, put corrective mechanisms in place, or share and present conclusions drawn from those. [2] In the course of investigating the causes that have led to the appearance of civil associations, foundations handling with the defense of rights, it should be pointed out that if there would be no demand, no request for their activity, then they would not exist[3]. The activities of civil defenders of rights can be found in those areas where „there is some kind of problem with the legal system”, whether in the area of legislation, either in the area of justice or law enforcement.

By investigating the question within a historical –societal context, it can be ascertained that in our country the societal, political and legal outcomes necessary for the evolution of rights defense organizations has been created by regime-change[4].  Rights defense organizations could emerge from the catacombs and could hereby perform their work more effectively, using their publicity and their audience as a legitimizing force.[5]

The „change situation”, nevertheless, created not only outcomes necessary for the establishment of the organizations, but also ‘gave them work’. Creating a well performing constitutional state does not happen overnight, the contribution of civil society – including human rights NGOs – is required. The civilians act against the inadequacies in the areas of legislation, legal defense, enforcement of rights, and also against false governmental or political practices.

Numerous expressions for lawyers who take part in this defense sector, and also their activities can be found in literature. For instance "lawyering for the good", "social justice" lawyering, "activist" lawyering, equal justice lawyering, "radical" lawyering, lawyering for social change,"critical" lawyering, "alternative" lawyering, political lawyering. These expressions can we use as synonyms. And these are only generic definitions, as distinguished from the "cause-specific" labels of civil rights, poverty, legal aid, environmental, labor, death penalty, feminist, disability, and defense lawyering.”[6]


II.  Place of civil defenders of rights within legal professions - recommendations


It is worthwhile to begin the analysis with the declaration that we can also talk about the legal profession in the case of civil defense of rights .[7]

 The concept of profession and the attributive legal can reinforce this statement. The concept of a profession can be defined with the help of role types used in social psychology: a profession is an occupational role which takes on a pervasive character and the pervasive roles influence the given person’s other roles and they affect them on a large scale. [8] In my opinion, this approach is relevant since in the case of civil defenders of rights, the “nature” of the profession itself – as it will be seen later – actually influences their personal lives and lifestyles, therefore, the pervasiveness of these legal professions will be different in a large way not only from other occupations’, but from other legal vocations’. I also would like to refer to the approach of Talcott Parsons. According to the American sociologist, the concept of a profession should indicate a group of “vocational” roles. Persons appearing in these roles fill the kind of functions which are generally appreciated by society, and – as it is stated by Parsons – they earn their living by this activity, so this is consequently their main profession. Members of a profession are trained in the formal educational system and receive suitable qualifications. Also Parsons refers to the notion that within certain professions, considerable division of work can be observed, and most members deal with practical questions. Therefore, it can be said that the person practicing a profession is “the practical, technical expert of the profession”, who is familiar with the traditions of his trade and practical feasibility.[9]

In the course of interpreting the attributive legal I take Richard R. Abel’s definition as my starting-point[10]: all officially educated and practiced legal activity, whether performed alone or as an employee of the public or private sphere; law students and university tutors should be listed here as well.[11]

After considering the proceeding definitions, the question of where civil defenders of rights can be placed within the legal field can be proposed and considered. Five analytical approaches are used in this part of my study, and it will become obvious that the formulation of a definitive answer raises several theoretical difficulties. In my study I am relying on my own empirical research performed in the first half of 2010 when I visited eleven relevant – acknowledged by the profession – Hungarian organizations for defense of rights and I had semi-structured interviews with lawyers. [12]


1.   Also in the case of the traditional legal professions, it can be said that after receiving uniform undivided education and obtaining a degree, a process of differentiation starts, where qualified lawyers become specialized in certain fields. In simple terms, five traditional legal professions can be considered: attorney, judge, prosecutor, legal counsel, administrative jurist; or this list can be completed with university tutors.

It is clear that a lawyer can participate in the work of an NGO in many ways; therefore, they should not be handled as a homogeneous group.

The classification of activist lawyers is known in foreign literature. Lynn C. Jone in his essay[13] looks for the answer to the question of how lawyers joining in social movements are capable of balancing their profession with their activist role and with their identity. Using an interview made with 34 lawyers, he applied the following typology to activist lawyers. He named core activist lawyers as those who determined activism as their primary identity and work, who are concerned in various movements and matters, and who are thought to be the centre of activist lawyering by other (activists and lawyers) in the community. Marginal activist lawyers adopted a waiting attitude concerning lawyering and activism. In this way none of these two things enjoy priority over another, and they did not define themselves as being principally activist. [14]

I am of the opinion that the strength and intensity of a link with an organization depends on the way in which a lawyer participates in the action of an organization. We can distinguish four potential connections between lawyers and human rights NGOs.


·          The weakest connection is the identification the person has with the aims and the mission of the organization. This identification can be invisible or can appear in several ‘visible’ forms – membership in the organization, supporting membership, donation, etc. – too.

·          The second potential way of connection is expert work. I do not consider expert work a close connection, since in these cases the organization asks the opinion of an expert on a special issue (e.g. foreign legal practice), it is not a regular connection, and the expert does not have to become one with the principles represented by the organization.

·          Those who take part in work as attorneys should be separated, as besides the work of civil defense of rights, attorneys maintain in parallel their praxis. It is worth to make distinction in respect to attorneys, since we can talk about partner attorneys who are in a permanent mandatory relationship with the organizations and perform –if the organization has – legal advice service, and it also possible that the attorney proceeds only in the given case by an ad hoc engagement agreement (a so called applied attorney). There are many lawyers who at the beginning are in full-time employment with a civil organization, and later, after earning the special examination become a partner attorney.

·          The work a lawyer performs for an organization can be a full-time job. In my opinion, this relation can be considered the closest from several aspects. The first and most determining reason is that with those people who take part in the work of a civil organization for the defense of rights as employees, the identification with the aims of the organization is very strong and stable. The connection between the lawyer and the organization can be regarded as tight also because there is also a certain kind of pecuniary and subsistence ‘dependence’. Since these lawyers live fundamentally on the salary that they earn at civil organizations.



2.   The legal professions can be classified also according to – this accomplishment was used by Lajos Lőrincz[15] – which sector the activity belongs to. Consequently three areas can be distinguished:

·        public sector: university tutors, judges, prosecutors, notaries or public company jurists;

·        freely exercisable legal profession (attorneys functioning in different constitutional forms);

·        private sector: legal counsels working at banks, insurance, industrial or commercial organizations.


If we take this categorization as a basis then we also run into some difficulties. Since from the aforementioned categories, civil defenders of rights belong to the freely exercisable legal profession. But they belong to the civil sector and we know that most of the initiations for the civil defense of rights are prominently public benefit organizations. Since they are established for the management of such a public function, which belongs by the right of law or statutory authorization to the scope of one state body or local government. Legal protection, the encouragement of legal assistance – also resulting from the Constitution – is  a state function beside the traditional forums – I consider here primarily the judicial organizations – the civil organizations also perform this fundamentally state function, therefore, they can deservedly lay claim to the prominently public benefit status.  One more important factor should be pointed out. As a result of the particular financing of the sector, the initiations are more and more compelled to see to other resources. According to the law CLVI of 1997 on public benefit organizations, civil organizations are entitled to exercise enterprise activities only with restrictions and attached to reasons. [16] All this raises the query of the non-profit character of the organization.


3.   As already mentioned above, lawyers become specialized in certain fields. This specialization can also be described by the nature of the area of law, or the branch of law. From this point of view, activist lawyers are qualified principally as constitutional lawyers, which comes from the essence of legal protection itself. If one would like to further improve this approach then of course other areas can be also mentioned, for example a criminal jurist, or a jurist dealing with data protection etc.


4.   The classification of lawyers can be performed also by the work of Barna Horváth. According to the Hungarian sociologist of law, legal work is the trade of judgment of legal cases by right of legal principles or the explication of legal principles from legal cases. This definition refers to two groups: 1. empirical legal work; 2. scientific legal work. The fundamental difference between them can be found in the approach, since the empirical lawyer is interested in the concrete case while the person doing scientific legal work is interested in recondite, abstract legal principles.[17]

“In modern times, the division of labor has produced activity areas and specialists no longer only within the law (judges, prosecution, administrative jurists, attorneys), but it also divided the legal experts generating scientific knowledge from people bearing empirical knowledge, who are the representatives of the experimental legal profession […] The function of empirical lawyers – except cautelaric work– is always attached to events, cases, and their task is to enforce the legal interest of their parties and clients using their operational knowledge, by the detailed erudition of their specialty and by their procedural and argumentative technique. On the other hand, their task is also to encourage the establishment of decisions corresponding with the rules of law. Accordingly, their knowledge is primarily the knowledge of operational rationality, and not – or at least not unconditionally – of substantive rationality. […] the jurisprudence carries the knowledge producing rationality. This latter type of knowledge is characterized by the notion that the person possessing it is nowadays less able to solve concrete tasks, in a technical sense to perform operations in the matter of law. At the same time, they see the unity of the formation, the development, the inner functional regularity and the social conditions of the rule of law.” [18]

In my opinion, the case of activist lawyers can not be talked about with such a sharp separation: they are empirical and scientific lawyers at the same time. Since they maintain legal advice service, but all this is done for the sake of the “greater cause”, for the development of the legal system, and this activity already has some significance beyond the case oriented legal work. This hypothesis was confirmed by the interviews undertaken, where a number of the subjects referred to this duality: “I used to think, that this is a middle ground between the practice and the academia. There is a certain kind of critical matter; there is a certain kind of analysis, essay writing, an investigation, a conversation, a conference. And there are events, when on the one hand we translate these into practice, and on the other hand we are really involved in practice, we gain the experience and the problem from it. This is an intermediate, transitional point between theory and practice”-said one of the activist lawyers.


5.   The activity of defense of rights and its attitude, approach to other legal professions can be analyzed by the basis of the Bourdieu's field theory.

Bourdieu investigated the law field in a separate dissertation, where it was stated that the law field is the area of the competition for the monopoly of the determination of law. Within the law field a certain kind of division of labour exists, which has evolved without any kind of previous planning, since it is determined by the structurally organized competition between the actors and the institutions. [19]

Zoltán Fleck – on the basis of Bourdieu – emphasizes that the factors determining the law field are influenced by the legal culture, so the living traditions, the education and the professional routines provide the dynamic of the field. “The central feature of the field is that it is the area of the fight for competencies and for the control above different funds, which arrange the legal professions and groups into hierarchies. Consequently, the struggle for power is a substantial, but hidden feature of the relationship of legal professions. The assumption of an outward equality, the concealment of the conflict between small and large legal companies or between practice and theory are typical. There is a continuous fight with the outsiders of the field for the maintenance of the field’s structure.” [20]

On the basis of the abovementioned establishments, the following conceptions can be made thesis-wise in association with the place of defenders of rights in law field:


a)   As I already mentioned above, in our country we can talk about legal profession for the defense of rights after the political transformation. It does not possess historical traditions having a long history, it is not part of the legal culture, and naturally this influences the position it has obtained position in the law field. It represents a heterodoxy (heresy) in contradiction to the traditional legal professions (orthodoxy).


b)  That question of what can be considered as the criterion of legal profession has arisen again: law degree or bar examination. It is a question of whether civil work for the defense of rights is connected to the existence of juridical special examination. Referring back to the part of my study where I wrote that a lawyer can join in the work of a civil initiation in many ways, it can be said for this reason that not all work for the defense or rights requires special examination, e.g. in the case of a lawyer participating in policy making, the obtainment of the special examination is irrelevant. It is also known from Bourdieu's field theory that in the course of the fight within the field, the actors have trumps, and they also play out them. And although there are legal professions where bar examination is not required – such as e.g. defense of rights, university tutor–, those possessing it emphasize or even sometimes overestimate its importance.


c)   In connection with the analysis of certain fields, the examination of getting the competences under control, which are necessary in order to belong to a field is also important. Civil lawyers defending rights undergo the same legal socialization as their partners who have chosen other legal professions. In my view, it could strengthen the position of activist lawyers in the field if the legal clinic programs would have a more prominent place in legal education.


d)  In relation to the law field, it is necessary to refer to its connection with the politics field. Zoltán Fleck highlights that “The juridical work plays an important role in rationalization, in centralization, in bureaucratization, and the jurists are the opponents of informality, spontaneity, particularity. But moreover, within the formation of the modern legal system the different legal roles are defined by particular historical conditions. The state, depending on their political history, can be the attendants of the occupying and/or modernizing authority, the means of oppression, the simple servants of the current prevailing power or the creators of the rule of law. Nevertheless they are typically the loyal opposition, the conservative rebels of restrained criticism, and thus they also create legitimization. The activist reformers and the preservers of the status quo also influence the operation of the state in the twentieth century by elite social background, accordingly by political conservatism, but with sensitivity towards civil rights, respectively. By legal help, all legal systems are conservative to the effect that it impedes its own demolition, the revolutionary legal system is a self-contradiction.” [21]

On the contrary, the task of the civil organizations for the defense of rights is to call attention to problems in the legal system, put corrective mechanisms in place, or share and present conclusions drawn from those.[22] Therefore, they are members of the opposition, and they evaluate the operation of the legal system from a critical position.


e)   At this part of my study one interesting note remains. We know that the division of labor within the field originates as a result of the structurally organized competition among the actors, and also know that at stake is the interpretation of the legal texts. This competition is done for the possession of the limitedly available authorized interpretational places.[23] Because of the complexity of the activity for the defense of rights, the defenders of rights had to fight with several legal trades (the history of the field can be described by the fight of orthodoxy and heterodoxy). The strategic sue, the legal assistance can be also considered as attorney’s action; the legal reform activity can be construed in the case of theoretical lawyering, administrative lawyering.

Thus it can be said that the labor of defense of rights is part of the law field. At present this work does not occupy an illustrious position in the (imaginary) hierarchy of legal professions. Also the executed interviews refer to the societal estimation of the activity for the defense of rights, to the opinions of other lawyers, respectively: “It is smiled at, it is regarded as a some kind of attempt made by finicky outsiders, or as the band of radical people who are stroppy and always say no to things.” Of course, like every field, the law field is also changing – depending on the fights carried out in the field, on the relation to the power field, respectively – continuously, the field of force itself is changing too. It can be described as a relatively young profession; therefore, the future of the filed can not be predicted.


III.               Summary


In my study I have attempted to place those lawyers dealing with civil defense of rights within the structure of the legal profession. It can be said that in the last twenty years the civil defense of rights has become an independent profession in our country also, which has a strong pervasive character. In my opinion it can be considered as a quasi-legal profession, since although the work of civil defense of rights can be done also without a law degree, those who (also) possess this qualification are the great majority, and the ‘lawyer defenders of rights’ can be already placed within the law field. I have applied several points of view to the solving of this positioning: differentiation by Barna Horváth, classification by branch of law and by sector, Bourdieu's field theory, etc. I have marked at each part what can be said about the civil activists, therefore, to not repeat the abovementioned details I would like only to refer to fact that by applying joint points of view it is possible to create a more comprehensive picture about this evolving subsector of the law field.

[1] This study is a revised and English version of the conference proceedings of Symposium Iubilaei Facultatis Iaurinensis (expectable date of publication is 2011 summer).

[2] Csernus, Eszter – Földes, Ádám: Adatvédelem és információharc két fronton, in Sólyom, László (et al.): Tízéves az Adatvédelmi Biztos Irodája. Adatv. Biz. Irodája, Budapest, 2006. 138.


[3] It can be seen that from the eighties the demand on law has increased, which can be explained by the following main societal factors: 1. The functional logic of the industrialized and supply sector based societies results in internal societal complexity and in the probability of the development of conflicts. 2. The individualization, the number of impersonal connections increase and in parallel the degradation of the traditional solidarity, personal relations starts. Therefore in case of conflicts, the recourse to law becomes frequent. 3. The relation of the whole society to law changes, for example the aptitude to sue increases. See Pokol, Béla: Jogszociológiai vizsgálódások. Rejtjel kiadó, Budapest, 2003. 25-26.


[4] Here I would like to refer briefly to the literature concerning the civil society that are calling attention to the notion that although we are saying that the civil sector has developed in the last twenty years, its roots run back to a previous time. In the 19th century in Hungary, civil, voluntary organizations, foundations could be found which fulfilled different social demands. In the state-socialist period only corporations officially approved by the system could operate, they were financed by public funds and they were closely attached to the party organizations. “In East-Central Europe a lot of people resisted these structures enforced on them. The passivists and the openly dissident worked within the frame of the officially approved organizations (e.g. environmental protection clubs, scouting movements, literary societies), or they established illegal underground organizations for the sake of preserving some form of the cultural, intellectual or political autonomy and integrity.“ The conception of the civil defense of rights, the importance of the human rights as values should be found at the so called democratic opposition, particularly at the Independent Legal Defense Service. Therefore, it can be said that the civil defense of rights in some kind of form existed in Hungary also prior to the political transformation, it had its roots, moreover, subsequently several person was also transferred to the forming, by that time legal civil sector. See: Siegel, Daniel –Yancey, Jenny: A civil társadalom újjászületése. A nonprofit szektor Kelet-Közép-Európában és a nyugati segítségnyújtás szerepe, RBF, New York, 1992. (Múzsák nyomda, Budapest) 19.


[5] Máté Szabó dealt with the professionalization of the civil organizations in several studies. See Szabó, Máté: A katakombákból a professzionalizmus felé. Fundamentum, 1997/2. 124-127.; Szabó, Máté: A társadalmi mozgalmak és politikai tiltakozás. Rejtjel Politológia Könyvek 5. Rejtjel Kiadó, Budapest, 2001.


[6] Menkel-Meadow, Carria: The Causes of Cause Lawyering. Toward an Understanding of the Motivation and Commintment of Social Justice Lawyers, in Sarat, Austin – Scheingold, Stuart (eds): Cause Lawyering. Political Commintment and Professional Responsibilities. Oxford University Press, 1998. 33.; Pokol, Béla: A perlési politizálás dilemmái. Jogelmleti Szemle 2000/4.


[7] I would like to refer to the fact that should be highlighted that not only those who have a law degree execute the job of the defender of rights. Empirical observations have shown that non-lawyer defender of rights, so called “uninitiated“, can be found at almost each organization. See in more details: Edit Vigh: Definition of the Civil Defense of Right as a Profession. De iurisprudentia et iure publico 2011/1. 218-225.


[8] Csepeli, György: Szociálpszichológia. Osiris Kiadó, Budapest, 2006. 193.


[9] Parsons, Talcott: A Sociologist Looks at the Legal Profession. in Parsons, Talcott: Essays in Sociological Theory. Vol. III. The Free Press, New York, 1958. 372.


[10] Abel, Richard R.: Theories of the Professions, in Abel, Richard R.: American Lawyers. Oxford University Press, New York- Oxford. 1989. 14.


[11] This definition of Abel contains two restrictions: 1. it excludes innumerous people practicing a trade, who perform functions considered from a certain point of view equivalent to lawyers, however, they do not have law degree, by way of illustration these kind of people are social workers, tax consultants, police officers, accountants; 2. Furthermore, it excludes those who have juridical qualification, but who do not do legal work in practice, for example general managers, journalists.

[12] In the present study the interviews are handled in an anonymous way. So, the quotations from the finished conversations are formally separated in that way that these parts are written in italics and placed inside quotation marks, too.


[13] Jones, Lynn C.: Carrer Activism by Lawyers: Consequences for the Person, the Legal Profession, and Social Movement, in Jerry Van Hoy (ed.): Legal professions: Work, Structure and Organization. Elsevier Sience Ltd, The Boulevard, Langford Lane Kidlington, Oxford, 2001. 181-206.


[14] Jones (2001) 184.

[15] Lőrincz, Lajos: A hazai jogászképzés aktuális kérdései, in Takács, Péter (szerk.): A jogászképzés múltja, jelene és jövője. Ünnepi tanulmányok, konferencia-előadások, kerekasztal beszélgetések. ELTE Állam- és Jogtudományi Kar, Budapest, 2003. 341.


[16] Csehi, Zoltán: A civil társadalom szervezeteinek joga Magyarországon. Gondolat Kiadó, Budapest, 2007.



[17] Horváth, Barna: A jogelmélet vázlata. Attraktor Kiadó, Máriabesnyő – Gödöllő, 2004. 191-195.


[18] Szigeti, Péter- Takács, Péter: A jogállamiság jogelmélete. Napvilág Kiadó, Budapest, 2004. 15-16.


[19] Bourdieu, Pierre: The Force of Law: Toward a Sociology of the Juridical Field. The Hastings Law Journal. Vol. 38./July 1987. 817-818.


[20] Fleck, Zoltán: A jogi mező (elméleti előtanulmány a jogászság szociológiájához), in  Pesti, Sándor – Szabó, Máté (szerk.): „Jöjj el szabadság” Bihari Mihály egyetemi tanár  60. születésnapjára készült ünneplő kötet. Rejtjel Kiadó, Budapest, 2003. 455.


[21] Fleck (2003) 454.


[22] Csernus – Földes (2006) 138.


[23] Fleck (2003) 460.