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Saints and Sinners: On Gandhi's Lawyers and Touts

Published online by Cambridge University Press:  20 November 2018

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Abstract

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Type
Review Essay
Copyright
Copyright © American Bar Foundation, 1984 

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References

1 To assist the reader who might find the multiplicity of terms for the category lawyer somewhat perplexing, I include a glossary in the appendix that should prevent the historical and cultural patterns from unraveling and becoming tangled.Google Scholar

2 See Robert C. Palmer, The Origins of the Legal Profession in England, 11 Irish Jurist 129 (1976); id., The County Courts of Medieval England, 1150–1350 (Princeton, N. J.: Princeton University Press, 1982). Palmer notes that although there was a division of function between pleader and attorney, no one was precluded from occupying both roles simultaneously.Google Scholar

3 See J. H. Baker, The English Legal Profession, 1450–1550, in Wilfrid Prest, ed., Lawyers in Early Modern Europe and America 16 (New York: Holmes & Meier Publishers, 1981); C. W. Brooks, The Common Lawyers in England, c. 1558–1642, in id. at 42; Wilfrid Prest, The English Bar, 1550–1700, in id. at 65.Google Scholar

4 See Daniel Duman, The English and Colonial Bars in the Nineteenth Century (London: Croom Helm, 1983).Google Scholar

5 Samuel Schmitthener, A Sketch of the Development of the Legal Profession in India, 3 Law & Soc'y Rev. 337, 345 (1968–69).Google Scholar

6 Gobindgarh is a fictitious name (at 1 n.1). See also infra note 48.Google Scholar

7 P. B. Vachha, Famous Judges, Lawyers, and Cases of Bombay 8, quoted in Schmitthener, supra note 5, at 339.Google Scholar

8 Schmitthener, supra note 5, at 343.Google Scholar

9 3 A. Spencer, Memoirs of William Hickey 149, cited in Schmitthener, supra note 5, at 345.Google Scholar

11 Misra, The Indian Middle Classes: Their Growth in Modern Times 327, quoted in Schmitthener, supra note 5, at 345.Google Scholar

12 The presidency towns were the key administrative areas of the Company. See V. D. Kulshreshtha, Landmarks in Indian Legal and Constitutional History ch. 2 (4th ed. Lucknow, India: Eastern Book Co., 1977).Google Scholar

13 Schmitthener, supra note 5, at 346, quoting from 6 Calcutta Rev. 530 (1846).Google Scholar

14 Id. at 356.Google Scholar

15 Id. at 367.Google Scholar

16 Kulshreshtha, supra note 12, at 417.Google Scholar

17 The Advocates Act of 1961, see Schmitthener, supra note 5, at 360.Google Scholar

18 Marc Galanter, Introduction: The Study of the Indian Legal Profession, 3 Law & Soc'y Rev. 201, 207 (1968–69).Google Scholar

19 Robert L. Kidder, Formal Litigation and Professional Insecurity: Legal Entrepreneurship in South India, 9 Law & Soc'y Rev. 11 (1974); Charles Morrison, Munshis and Their Masters: The Organization of an Occupational Relationship in the Indian Legal System, 31 J. Asian Stud. 309 (1972); id., Clerks and Clients: Paraprofessional Roles and Cultural Identities in Indian Litigation, 9 Law & Soc'y Rev. 39(1974).Google Scholar

20 Central Statistical Office, 1 Census of India 12–13, series 1, pt. 26(4) (New Delhi, 1971).Google Scholar

21 Sikhism is a noncaste religion founded in the fifteenth century in a schism from Hinduism. See Gopal Singh, A History of the Sikh People, 1469–1978 (New Delhi: World Sikh University Press, 1979).Google Scholar

22 See, e.g., Max Weber, Caste Taboo, Vocational Caste Ethics, and Capitalism, in 2 id., Economy and Society, ed. Guenther Roth & Claus Wittich, and trans. Ephraim Fischoff et al. 435 (Berkeley: University of California Press, 1978); also Marc Galanter, Competing Equalities: Law and the Backward Classes in India (Berkeley: University of California Press, 1984).Google Scholar

23 The Royal Commission on Legal Services, Final Report: Surveys and Studies, Cmnd. No. 7648–1, at 59 (London: Her Majesty's Stationery Office, 1979).Google Scholar

24 Preface to N. R. Madhava Menon, Legal Education in India: Status and Problems 13 (New Delhi: Bar Council of India Trust, 1983).Google Scholar

25 The LL.B. degree runs the usual gamut of courses, e.g., torts, procedure, business law, and legal ethics. See Paras Diwan, State of Legal Education in Punjab and Chandigarh, in Menon, supra note 24, at 64–65. But as Gandhi notes, the ethical standards of the Gobindgarh bar are abysmally low. I will return to this topic below.Google Scholar

26 Chambers are suites of offices shared by barristers who come together to share expenses but not fees. See 1 The Royal Commission on Legal Services, Final Report, Cmnd. 7648, at 446 (London: Her Majesty's Stationery Office, 1979); John A. Flood, Barristers' Clerks: The Law's Middlemen (Man-Chester: Manchester University Press, 1983).Google Scholar

27 Cf. John P. Heinz & Edward O. Laumann, Chicago Lawyers: The Social Structure of the Bar 43–53 (New York: Russell Sage Foundation, and Chicago: American Bar Foundation, 1983). They explored the amounts of time practitioners devoted to particular fields of law (25 fields identified) by placing them in three categories: those that spent 5% to 25% of their time in their field, those that spent 25% to 50% of their time, and those that devoted over 50% of their time to a field.Google Scholar

28 No data are supplied for the satellites.Google Scholar

29 The monograph contains more defects of a similar nature. Gandhi has a tendency to quote or to cite writers, then not list them in his bibliography. I counted at least 13 such lapses, besides sundry misspellings of authors' names or absences of references where they are needed.Google Scholar

30 For example, Gandhi notes that although the Punjab has only 2.4% of the country's total population, it has 4.5% of the country's civil litigation (at 55).Google Scholar

31 Cf. the lists of clients of law firms in The American Lawyer Guide to Law Firms, 1983–84 (New York: Am-Law Publishing, 1983); and see James B. Stewart, The Partners: Inside America's Most Powerful Law Firms (New York: Simon & Schuster, 1983).Google Scholar

32 Kidder, supra note 19, at 22.Google Scholar

33 Cf. Jerome E. Carlin, Lawyers on Their Own: A Study of Individual Practitioners in Chicago (New Brunswick, N.J.: Rutgers University Press, 1962), and Kenneth J. Reichstein, Ambulance Chasing: A Case Study of Deviation and Control Within the Legal Profession, 13 SOC. Probs. 3 (1965).Google Scholar

34 Morrison, Clerks and Clients, supra note 19, at 47.Google Scholar

36 Cf., e.g., Pat Carlen, Magistrates' Courts: A Game Theoretic Analysis, 23 SOC. Rev. (n.s.) 347 (1975); id., Magistrates' Justice (London: Martin Robertson, 1976).Google Scholar

37 Morrison, Clerks and Clients, supra note 19, at 50–51.Google Scholar

38 Kidder, supra note 19, at 23.Google Scholar

39 Morrison articles, supra note 19.Google Scholar

40 See 1 The Royal Commission on Legal Services, supra note 26, at 406, 482; Quintin Johnstone & John A. Flood, Paralegals in English and American Law Offices, 2 Windsor Y.B. Access to Just. 152 (1982); and Flood, supra note 26.Google Scholar

41 Adopted by the House of Delegates, American Bar Association, Aug. 1983. See James Lindgren, ed., Review Symposium: Model Rules of Professional Conduct, 1980 A.B.F. Res. J. 921.Google Scholar

42 Menon, The Structure and Distribution of Law Colleges in India, in id., supra note 24, at 329.Google Scholar

43 Id. In (a) there are 50 centers, in (b) about 65, and in (c), 230.Google Scholar

44 Menon, Legal Education for Professional Responsibility, in id., supra note 24, at 307.Google Scholar

45 Menon, supra note 42, at 329. In (a) all would qualify, in (b) most would, and in (c) only 10% would pass.Google Scholar

46 Id. at 330.Google Scholar

47 Cf. Ronald M. Pipkin, Law School Instruction in Professional Responsibility: A Curricular Paradox, 1979 A.B.F. Res. J. 247.CrossRefGoogle Scholar

48 There is one very serious error that gallops, rather than creeps, into his text. Gandhi chose the name Gobindgarh to protect the anonymity of the town and its lawyers. Unfortunately, he then provides us with sufficient geographical information that anyone with an atlas open to India can easily identify Gobindgarh. If promises of confidentiality or anonymity are given, they must, for the sake of the subjects and other researchers, be honored and kept.Google Scholar

49 See Douglas E. Rosenthal, Lawyer and Client: Who's in Charge? (New York: Russell Sage Foundation, 1974); Brenda Danet, Kenneth B. Hoffman, & Nicole C. Kermish, Obstacles to the Study of Lawyer-Client Interaction: The Biography of a Failure, 14 Law & Soc'y Rev. 905 (1980).Google Scholar

50 Carl J. Hosticka, We Don't Care About What Happened, We Only Care About What Is Going To Happen: Lawyer-Client Negotiations of Reality, 26 SOC. Probs. 599 (1979); and Jack Katz, Poor People's Lawyers in Transition (New Brunswick, N.J.: Rutgers University Press, 1982).Google Scholar

51 Maureen Cain, The General Practice Lawyer and the Client: Towards a Radical Conception, in Robert Dingwall & Phillip Lewis, eds., The Sociology of the Professions: Lawyers, Doctors and Others (New York: St. Martin's Press, 1983); John A. Flood, Provincial Solicitors and Their Clients (typescript 1984).Google Scholar

52 John P. Heinz, The Power of Lawyers, 17 Ga. L. Rev. 891 (1983).Google Scholar

53 This process, by the very nature of the enterprise, will be an interesting one to study as the final product–-article or book–-will emerge out of the collaborative efforts between law firm and researcher.Google Scholar

54 See Barney Glaser & Anselm L. Strauss, The Discovery of Grounded Theory: Strategies for Qualitative Research (Chicago: Aldine Publishing, 1967); Howard S. Becker, Problems of Inference and Proof in Participant Observation, 23 Am. Soc. Rev. 652 (1958).Google Scholar

55 See Robin Luckham, The Ghana Legal Profession: The Natural History of a Research Project, in id., ed., Law and Social Enquiry: Case Studies of Research (New York: International Center for Law in Development, and Uppsala, Sweden: Scandinavian Institute of African Studies, 1981); and John A. Flood, Middlemen of the Law: An Ethnographic Inquiry into the English Legal Profession, 1981 A.B.F. Res. J. 377.Google Scholar

56 Luckham, supra note 55, at 127.Google Scholar

57 Gandhi could have discussed Terence Johnson's work on Third World professions. See, e.g., Terence J. Johnson, Imperialism and the Professions: Notes on the Development of Professional Occupations in Britain's Colonies and the New States, in Paul Halmos, ed., Professionalisation and Social Change 287, Monograph no. 20 (Keele, England: Sociological Review, 1973); also Robin Luckham, The Political Economy of Legal Professions: Towards a Framework for Comparison, in C. J. Dias et al., eds., Lawyers in the Third World: Comparative and Developmental Perspectives 287 (Uppsala, Sweden: Scandinavian Institute of African Studies, and New York: International Center for Law in Development, 1981).Google Scholar

58 This view is evocatively epitomized by two books: Gerry Spence & Anthony Polk, Gunning for Justice (Garden City, N.Y.: Doubleday, 1982), and Stuart M. Speiser, Lawsuit (New York: Horizon Press, 1980). Both authors see themselves as the saviors of the oppressed, without worrying that the price of entry to the lawyers' chambers might be prohibitively high for most people.Google Scholar

59 See Stephen J. Adler, Bhopal Journal: The Voiceless Victims, Am. Law., Apr. 1985, at 133.Google Scholar

60 Id. at 135.Google Scholar

61 See supra note 41.Google Scholar

62 See Kings of Catastrophe, Time, Apr. 22, 1985, at 80.Google Scholar

63 See Tamar Lewin, Three Lawyers to Oversee India Suits, N.Y. Times, Apr. 26, 1985, at 28, col. 3.Google Scholar