Israel Studies 3.2 (1998) 30-46
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Governmental Lawyering in the Political Sphere:
Advocating the Leviathan
Gad Barzilai and David Nachmias
States and Governmental Lawyering: Epistemology of Partial Autonomy
THE STUDY OF ATTORNEYS GENERAL and public prosecutors as political institutions has long been neglected. It is the judicial elite, courts, and legal culture which have been the main focus for scholarly attention. Attorneys general and public prosecutors have had a notable effect on the work of judiciaries; they have been an important pillar in the co-optation of the administration, the judiciary, and the legislature, and they have significantly participated in the generation of legal norms. 1 Yet, they have been largely absent from the intellectual efforts to comprehend and conceptualize law and politics. Attorneys general and public prosecutors have either been contextualized in a narrow historical descriptive manner or formalized in an orthodox positivist fashion. Approaching them not as administrative positions, but as politico-legal phenomena in the context of state power—to be explored not only as integral parts of the state, but as self-propelling structures—should enable a better comprehension of state mechanisms in the generation of legal fabrics.
Attorneys general and public prosecutors are political power foci, and yet they are supposed to limit and impose the "rule of law" on political power foci. They have two sources of power and weakness: their affiliation to the legal community, which interprets legal texts and praxis, and, more importantly, their role as agents of the state, albeit with a certain degree of autonomy. Very few public and judicial institutions present the same paradoxical existence. They are regulative agents of the executive, they are constitutive agents of the state producing legal reasoning and practices, and they may also contribute to dispute resolution. Do they operate in contradiction to and against the structural interests of the ruling elite? Do they [End Page 30] fight the crimes of the elite, and do they challenge hegemonic ideologies? What is the essence of their contribution to the generation of legal practices and public policy? Our purpose is to grapple with these issues as they appear in Western democracies and in Israel. We have studied the experience of those countries in order to conceptualize the essence of law as politics. These issues deal with a central dilemma; that is, the politico-legal meaning of partial autonomy of attorneys general and public prosecutors for the formation and exertion of law as political power
The emergence of the regulative state in the mid-nineteenth century and the utilitarian needs of states to challenge the possibility of delegitimization or demolition have reinforced the rise of "law" as a mythical ordering principle of political order. Inter alia, attorneys general and public prosecutors have become vital elements in that fabric. These legal agents have been used to legalize the state and its failures and to mystify its existence. They have reproduced dominant ideologies as legal configurations within which the meaning of right, authority, crime, and punishment are constructed. This has been done by using techniques of advice, regulation, investigation, and accusation. 2 In doing so, and as we shall show later, public accountability of these legal agents in different democracies has been invariably restricted. This remoteness from public scrutiny, and the limited judicial review imposed on such institutions have been atypical of any other civilian administrative body in democracies. It has granted attorneys general and public prosecutors a certain freedom of discretion in the respective functions of legal guidance and prosecution.
Governmental lawyers, however, have consciously maneuvered themselves to evade the prosecution of heads of states and the elite for their crimes. Moreover, governmental lawyers have chosen to be maneuvered by other politicians into a position where their relative passivity and self-inflicted adaptability to governmental propensities have ensured their relative autonomy.
It is hardly conceivable how the institutions of attorney general and public prosecutor can be comprehended within the archaic liberal framework of separation of powers. On one hand, we have seen that these institutions are not independent from the branch of government which nominates...