- The Mandarins of the LawPro Bono Legal Work from a Comparative Perspective
The right to access to justice is one of the pillars of modern liberal democracies. On the one hand, it allows citizens to solve their conflicts by appealing to courts and to the administration.1 On the other, as argued in the theoretical papers gathered in Part I, it allows citizens to choose and realize their life projects and to be fully included in the political community. Yet, all modern liberal democracies suffer an access to justice deficit to varying degrees. As argued in the introduction of this special issue, class, epistemological and market inequalities create notable obstacles to the materialization of the right to access to justice. Modern liberal democracies have developed four institutions— public defenders’ offices, court-appointed counsel, legal clinics, and pro bono work—to realize the State’s and lawyers’ obligations to securing the right to access to justice for all. This article is focused on only one of these institutions: pro bono legal work. This article pursues two intertwined aims: first, it describes and analyzes the conceptual architecture that supports pro bono work;2 second, using these theoretical tools, it describes and analyzes the pro bono discourse and practices developed in Argentina, Colombia, and Chile. [End Page 131]
In Part I, I present the elements that form the standard global concept of pro bono work. Pro bono work is a global phenomenon defined by, and based on, a transnational discourse.3 In the first section of Part I, I argue that this transnational discourse conceptualizes pro bono work as a set of institutionalized free legal services that lawyers voluntarily provide to people with few financial resources or to protect the public interest. In the three following sections, I specify and analyze the concepts of subject,4 time,5 and space6 that this understanding of pro bono work creates, to present the categories that structure the discourse on pro bono work and contribute to the creation of part of the modern legal and political imagination. In the final section of Part I, I present and analyze the conceptual oppositions that structure the discourse on pro bono work and contribute to the creation of the concepts of subject, time, and space that support its conceptual apparatus.
In Part II, in the first section, I argue that the pro bono discourse and practices in Argentina, Chile, and Colombia are the result of a legal [End Page 132] transplant between the legal mandarins of North and South America. The Argentinian, Chilean, and Colombian legal elites import this set of practices and theories; the US legal elites export them.7 In the second section of Part II, I explore the reasons for the exchange of pro bono knowledge. In the third section, I present and analyze the role that clients and the state have in pro bono, as well as the local interpretations and variations of the transplantation that are emerging. Finally, in the last section, I explain why this knowledge still has not fused into stable institutions and practices in the importing legal communities. This legal transplantation has not taken root in the private spheres of the importing liberal states, and has had a minor impact on the realization of the right of access to justice.8
The two parts of this article intersect. The conceptual architecture of the globalized pro bono legal discourse is fundamentally the same as the concepts that have been promoted by the pro bono foundations of Argentina, Chile, and Colombia. The theoretical analysis is useful for understanding both the standard pro bono discourse already disseminated globally and practiced by Argentinian, Chilean, and Colombian lawyers. This cultural analysis of pro bono work does not occur in the abstract. The differences and similarities among pro bono work in Argentina, Chile, and Colombia; the patterns that the pro bono discourse and practices follow in these three countries; and the specific ways they have contributed to the construction of regional lawyers’ legal consciousness illustrates this cultural analysis. The relationship between theory and practice, therefore, goes both ways.
The theoretical and comparative analysis presented in this article is informed...