Talk:Lawyer/Archive 4

Iceland sure, but not so sure about India

Regarding Rewinn's latest edits: I had forgotten about the readings on Iceland assigned in Alternative Dispute Resolution back in law school, but your edit reminds me of them. I don't know if that's a good example of "lawyering," though, because although there was advocacy on behalf of others, the Iceland self-help system did not really operate in a forum or a court per se.

As for India, I will have to look into that when I have the time.

I found some books at the public library on lawyering in the Dark and Middle Ages (that is, what little lawyering went on) but I haven't had the time to draft text and add the citations. --Coolcaesar 05:08, 8 August 2006 (UTC)

As for that Indian guy just mentioned by Rewinn: I just skimmed the article. He wouldn't really count as a lawyer under the modern definition, but more likely would be counted as a jurist. Nearly all civilizations had judges and legal scholars, but lawyers are actually quite rare in world history until relatively recently. By lawyers I mean people who actually advocate in court on behalf of others. In most civilizations, people were expected to present their own cases — or they were interrogated by the judge in a kind of don't-speak-unless-spoken-to situation — and laws were very rudimentary. --Coolcaesar 05:11, 8 August 2006 (UTC)

I put in a little about Icelandic lawyering in the Dark Ages. If you read the sagas (available cheap from Penguin, or interlibrary loan) you'll see some interesting stuff, in Hrafnkels saga (which could be read as a long lawyer joke but probably isn't), Njál's saga (an excellent courtroom battle between heavily armed Vikings), and Laxdaela saga (which includes a delightful inheritence problem: dad, mom and kid drown slowly; the order in which they die determines which side of the family gets the estate...). The sagas seem to be dramatizations rather than history, but it's interesting that dramatists were even thinking of the concept of venue. rewinn 05:14, 8 August 2006 (UTC)

I am still skeptical about the Iceland situation because I do not recall that the warriors in any of the sagas actually fought before a forum (that is, in the presence of a neutral referee who could declare a winner). It seems to me that they primarily described battles governed by a set of ancient customs. Although there is an advocacy aspect in the sense that warriors often intervened on behalf of others, the sagas would then describe dispute resolution by violence or self-help which has happened in cultures around the world and is traditionally not regarded as lawyering (which involves dispute resolution by nonviolent means). I do not want to muddle the definition of the lawyer with that of the mercenary, because (1) that opens the door for mentioning a lot of dispute resolvers not traditionally regarded as lawyers (and whose connection to any of the modern roles of a lawyer is very weak) and (2) in turn we risk the publication of original research in violation of core Wikipedia policies. See Wikipedia:No original research. Can you describe a particular saga that I can then focus on looking up? --Coolcaesar 19:32, 9 August 2006 (UTC)

Concerning Icelandic lawyering in the sagas: Perhaps I have not been clear that the legal contests in the sagas were precisely that: legal, not violent. There was violence before and after, but the legal contest itself was waged with words, using rules and a neutral arbitrator determining who had best applied their facts to the laws. If the loser was a poor sport ... well, that happens.... You will enjoy reading the relevant part of the sagas. The situation that of traditional lawyering, with a pre-defined set of rules (e.g. who is entitled to inherit what) sufficiently complicated that the assistance of a professional is helpful to the ordinary person, before a neutral adjudicator unrelated to the parties (or to their advocates) who renders a judgement according to the law. The "self-help" aspect refers not to the determination of judgement, but to the collection of judgement; this is still an issue today even in American law. For example, when you get a civil judgement with the help of a lawyer and resort to a repo man to collect on that judgement, the fact that the repo man is a mercenary does not make the initial legal judgement any less of a legal judgement, nor the lawyering any less lawyering.

My favorite is Niall's saga because of the complicated legal maneuvering at the end, but it is rather long. Let me summarize the legal battle (just from memory, could be faulty)

• Defendant (D) to lawyer: Plaintiff is suing me for wrongful death (burning alive) of Niall
• Defendant's Lawyer (DL): he's suing you in the court of the north quarter of Iceland. Secretly swear fealty (sort-of) to a lord of the west quarter. That will make his pleading improper, making him throw out the suit and we get damages!
• Plaintiff's lawyer (PL) figures out a way around that, I forget what (I think he lodged an appeal or a new action in the Fifth Quarter court, which had jurisdiction over all Iceland.
• DL: we have to agree on a jury. No problem. PL's candidates are improper (for some reason ... I think it was that one of them was related to Niall).
• PL: your jury challenge fails. True, the venireman was related to Niall but it was by baptism, not by blood. And anyway, P is Niall's heirs; Niall isn't in the case (he's dead).
• It goes on like this for chapters .... rewinn 20:23, 9 August 2006 (UTC)

I am traveling right now (see my newest contribution at United States Patent and Trademark Office to get an idea of which city I am visiting). I will look up that saga at the public library when I have the time after I get back. --Coolcaesar 01:29, 12 August 2006 (UTC)

I hope no-one minds, but I separated the thread about defining a lawyer from the thread about Iceland. It was just getting hard to keep straight what was what. I also deleted a few of my snarkier comments (but they're still available in history). rewinn 02:52, 14 August 2006 (UTC)

An update on my quest to improve this article: The public library in the West Valley I briefly visited today didn't have much on Icelandic literature besides a single book from the 1960s which was a very high-level analysis of the entire genre. But I'll concede that the author did use the terms "legal procedure" and "lawyering" in summarizing Njal's saga, which he called the greatest of all Icelandic sagas. However, he wasn't a lawyer, so I can't take his word for that. The next time I visit the big library in San Jose (in another week, I'm rather busy), I'll look up a translation of the saga and read it for myself. Plus I'm sure there will be more scholarly commentaries on the shelf there.

Also, I'm still thinking about how to rewrite the intro for a more balanced treatment of how the structure of the legal professions has always been rather messy in all countries including England and Wales. I haven't forgotten about that issue. --Coolcaesar 05:17, 20 August 2006 (UTC)

Why do you say "he wasn't a lawyer, so I can't take his word for that"? Surely a scholar can be a non-lawyer and yet understand what lawyering is. After all, according to your definition above (which I hope you no longer endorse) most judges and law professors are not lawyers. If you accept the word only of lawyers, then take my word for it: I am a lawyer (WSBA #25833) and I have read the text and the events at law rock are lawyering under any definition that makes sense. I don't know what they are teaching in law schools these days. rewinn 22:03, 20 August 2006 (UTC)

I think the best analogy is to the expert witness situation. I don't trust sources when the author is analyzing something outside of his sphere of expertise. That's something I picked up in critical thinking class when I was in college.

Of course, I'm not saying that nonlawyers can't form an educated opinion on what is or isn't lawyering. I would definitely accept the opinion of a paralegal or law professor, as well as any scholar who specializes in studying the legal profession or the legal system. But I wouldn't trust a professor of Icelandic literature to tell me what is or isn't a lawyer, just as I wouldn't trust a lawyer with no medical training to diagnose a brain tumor. --Coolcaesar 23:58, 21 August 2006 (UTC)

I have been incredibly busy recently with legal work, but I did find an old translation of Njal's saga from the 1920s at a small public library recently. He sounds more like a jurisconsult than an advocate to me, but maybe that's because I was skimming it at high speed. Primitive jurisconsults can be found all over history (though only at the risk of writing improper Whiggish-style history) but advocates are much harder to find. When I get the chance I will try to dig up one of the contemporary translations of the saga. --Coolcaesar 02:10, 13 September 2006 (UTC)

I'm glad business is good. Perhaps you'll want to make a contribution to the wikipedia foundation ;-)

1. Your distinction between advocate and juriconsult is not relevant to Lawyer.
2. The lawyers in Njal's saga spoke in court (not just in their client's offices); related the relevant law to the relevant facts; spoke to the decisionmakers (not to their clients) ... and in every way acted precisely as lawyers do today (except the part about killing opposing counsel). rewinn 20:58, 27 September 2006 (UTC)

Actually, the distinction is relevant. From what I've ascertained so far (I have been reading some books on the history of legal systems in Asia which I plan to add cites for soon), nearly all civilizations did not have advocates because they adhered to the rule that people had to represent themselves when appearing before judges. This was the situation in both ancient Greece, at least initially, as well as ancient Israel and imperial China. These cultures (and many others) did have people who helped draft pleadings but such ghostwriters were officially despised (and in China, often arrested as "pettifoggers" and "litigation instigators"). Their work was always drafted as if it was the client speaking and the client signed the documents; they never signed in their own name.

The reason I'm focusing on a narrower definition of lawyer is because most civilizations did have judges who had a little bit of learning in law, or whatever crude system of custom or philosophy or religion which passed for a legal system. But very few civilizations until the 20th century had advocates who represented the interests of particular clients and thought about problems from a client-centered perspective. In contrast, most judges are concerned with "big picture" issues like clearing their caseload, maintaining social order, and keeping order in the court.

And your broad definition of lawyer still doesn't sound right. I've never heard any American attorney (particularly those from top tier schools) use such a broad definition that conflates lawyers and judges, either orally or in writing (and I read a lot of legal newspapers and magazines). Yes, most judges were trained as lawyers, but they lose their lawyer status (especially in the sense of being a zealous advocate) when they join the bench and become impartial dispute resolvers. Most writers refer to "lawyers and judges" to be clear that they are talking about both categories (I just ran some searches on the State Bar of California Web site). If the category of lawyers included judges, then a reference to lawyers alone would do. I also noticed that California judges technically lose their bar membership while they are serving in the judiciary. Search on any judge in the Calbar database, like Alex Kozinski, and you will see from the member status data what I mean. But they get their membership back when they resign from the judiciary.

But this is not true in other common law jurisdictions -- its a US thing. As I have said, it may be that the notion of "lawyer" as a strict category is a US-only idea, and thus highly POV. In England and Wales many solicitors and barristers (who I guess you would call lawyers) sit as part-time judges. A recorder (a more senior part-time judge) may well sit on rather important cases (for example in the High Court and I think it is possible in the court of Appeal -- there's a lot of flexibility). They are both judges in every sense of the word, but also practising "laywers" who work for clients at other times (the mix being something of a matter for them). Judges continue to be members of the Inns of Court after they cease to practice and work as judges full time. I'm not sure if they can be said to lose bar membership, although (obviously) they will stop paying for a practising certificate because they don't need one. I think the use of part-time judges in this was is usual throughout the common law world. Francis Davey 08:36, 28 September 2006 (UTC)

We use part-time judges too (a judge pro tempore or judge pro tem for short) but they retain their lawyer status and are widely viewed as state-sponsored arbitrators who fill holes in the badly underfunded judiciary (lawyers who serve as arbitrators aren't viewed as real judges either). For example, many traffic courts in California (I can testify to this from personal experience) are routinely staffed by judge pro tems (meaning burned-out middle-aged litigators) who start off by notifying everyone that they can stipulate to their jurisdiction by staying there and keeping their mouth shut, or speaking up and demanding a real judge. But if they want a real judge, then they have to come back to court on a date when a real judge is available. Since it is a big sacrifice for most middle-class and working-class people to take time off work to come down to court to resolve a $500 ticket, most people stay there and allow the judge pro tem to resolve their case (if they can talk their way out of the ticket, they will avoid a conviction and an increase in car insurance premiums that will cost a lot more than $500). There is even a box on the standard case disposition form for "Stipulates to Judge Pro Tem." Anyway, I suspect the strong division in American English between lawyers and judges comes from our Constitution's concept of an Article III judge. --Coolcaesar 02:47, 6 October 2006 (UTC)

Clearly we part company on this point. In England and Wales a part time judge might be a very eminent practising lawyer as well as being a judge of some significant. So, my old head of chambers practised as Mr Record Langstaff (the title of a particular level of part-time judge) while working as head of chambers and appearing in many leading cases. He is now "Mr Justice Langstaff" (a high court judge) and no mean judge. That often happens. It is common to see High Court (and sometimes court of appeal) decisions where the judge, or one of them, is a part-timer and will therefore practice as a lawyer elsewhere. As I said, I think the US is unusual in having a tidy concept of a "lawyer" and that has to be borne in mind when constructing this article. Its more fuzzy elsewhere it really is. Francis Davey 19:12, 11 October 2006 (UTC)

I just checked my personal copy of Black's Law Dictionary, 7th edition (and I'm sure you must have a copy of either Black's or one of its smaller brethren like Barron's). At page 895, Black's defines lawyer as "one who is licensed to practice law." In turn, the "practice of law" is defined at page 1191 as: "The professional work of a duly licensed lawyer, encompassing a broad range of services such as conducting cases in court, preparing papers necessary to bring about various transactions from conveying land to effecting corporate mergers, preparing legal opinions on various points of law, drafting wills and other estate-planning documents and advising clients on countless legal questions. The term also includes activities that comparatively few lawyers engage in but that require legal expertise, such as drafting legislation and court rules." Of course, as you should know, Black's is edited by Bryan Garner, the leading authority in the United States on legal writing (who does seminars and writes lots of books and articles and so on). If he thought the practice of law or being a lawyer included judging, he could easily have said so. Can you cite any authority for your broad definition?

Right, but Black's is US POV isn't it? There is no notion of being "licensed to practice law" in England and Wales. There are a few specific tasks which require certain kinds of professional membership (will writing and conveyancing) and rights of advocacy in some courts are restricted to those authorised to do so (who are a subset of all those you might call "lawyers" and some aren't really "lawyers" in that they are specialists such as patent agents). In general, anyone can conduct litigation (except barristers who are required not to by their professional rules, but not by the general law), give legal advice on any subject, draft legal documents and so on. In sociological terms the general public will tend to think of people as "lawyers" but in a looser than you have in mind and not necessarily consistently. Really, I suspect that most people would treat lawyer=person with law degree or equivalent. Francis Davey 08:36, 28 September 2006 (UTC)

You mean most people in English-speaking countries outside the United States. Most Americans tend to have the view that lawyers argue cases (as zealous advocates) and judges decide them (as impartial neutrals). I was arguing against Rewinn's view that Americans share the Commonwealth definition of the word "lawyer," when Black's (the dominant dictionary in the U.S.) clearly indicates that they do not. --Coolcaesar 02:47, 6 October 2006 (UTC)

I thought it was obvious I was confining myself to English-speaking countries. Other languages do not use the word "lawyer" and often do not have an exact equivalent. Francis Davey 19:12, 11 October 2006 (UTC)

I don't recall contrasting American & Commonwealth's views of lawyering. In American jurisdictions, Black's is not authoritative on the question of who is a lawyer or who is lawyering; to the contrary, every jurisdiction has strong rules, generally enforced by courts and/or delegated to associations, defining who is a lawyer and what is the practice of law. If you violate them, Black's will not help. I don't know how they do it elsewhere. rewinn 05:14, 6 October 2006 (UTC)

Well, I am trying to focus on the broader issue of the actual linguistic usage of lawyer in American English, which as the quotation from Black's demonstrates, is clearly synonymous with attorney. And an attorney in all American jurisdictions cannot be a sworn Article III judge at the same time. Before they put on the black robe and take the oath, they have to shut down their practice and withdraw from all active cases (or transfer them to other personnel in their firm). --Coolcaesar 06:51, 11 October 2006 (UTC)

OK. Might it not be better to have a US-specific page which can talk about people who are licensed to practice law? Francis Davey 19:12, 11 October 2006 (UTC)

Finally, can you cite to me any particular page in a certain translation of Njal's saga where someone speaks to the court on behalf of someone else? I skimmed a more recent 1997 translation at another library last weekend but didn't see anyone acting in a representative capacity, just a consultative one. --Coolcaesar 03:15, 28 September 2006 (UTC)

Njalssaga Text

In modern contingency fee practice, lawyers take a case which formally remains the plaintiff's and the lawyer's fee comes out of the award. Defense lawyers are allowed to accept pay for practice. In the Iceland of Njalssaga, the plaintiff's lawyer appears to take possession of the case from the plaintiffs; the rights they argue are those of the plaintiff but the right to argue is the lawyer's. The defendant's lawyer has no connection in interest to the case; officially he is just helping the defendant; unofficially and secretly he has been paid. The money side of practice today is very different but the lawyering is still fundamentally lawyering, arguing the legal merits of another person's claim in a dispute. Let us look to the text:

For the Plaintiff:

CHAPTER 134. OF THORHALL AND KARI

http://omacl.org/Njal/9part.html

"Then Mord took Thorgeir by the hand and named two witnesses to bear witness, "That Thorgeir Thorir's son hands me over a suit for manslaughter against Flosi Thord's son, to plead it for the

slaying of Helgi Njal's son, with all those proofs which have to follow the suit. Thou handest over to me this suit to plead and to settle, and to enjoy all rights in it, as though I were the rightful next of kin. Thou handest it over to me by law, and I take it from thee by law.""

For the defense:

137. OF EYJOLF BOLVERK'S SON

http://omacl.org/Njal/9part.html

There was a man named Eyjolf. He was the son of Bolverk, the son of Eyjolf the Guileful, of Otterdale (1). Eyjolf was a man of great rank, and best skilled in law of all men, so that some said he was the third best lawyer in Iceland. He was the fairest in face of all men, tall and strong, and there was the making of a great chief in him. He was greedy of money, like the rest of his kinsfolk. ..."

Then Flosi said, "... We wish to ask for thy help, Eyjolf, and that thou wilt stand by us in our suits, and go to the court with us, and undertake the defence, if there be any, and plead it for us, and stand by us in all things that may happen at this Thing...."

Then Eyjolf arose, and Flosi too, and they took one another by the hand; and so Eyjolf undertook the whole defence of the suit off Flosi's hands, and so, too, if any suit arose out of the defence, for it often happens that what is a defence in one suit, is a plaintiff's plea in another. So he took upon him all the proofs and proceedings which belonged to those suits, whether they were to be pleaded before the Quarter Court or the Fifth Court. Flosi handed them over in lawful form, and Eyjolf took them in lawful form, and then he said to Flosi and Bjarni, "Now I have undertaken this defence just as ye asked, but my wish it is that ye should still keep it secret at first; but if the matter comes into the Fifth Court, then be most careful not to say ye have given goods for my help."

Pleadings by representatives of the true parties in interest

CHAPTER 141. NOW MEN GO TO THE COURTS

http://omacl.org/Njal/10part.html

Mord summons Flosi, or whoever has taken his case:

"Again Mord said, "I take witness to this, that I bid Flosi Thord's son, or any other man who has undertaken the defence made over to him by Flosi, to listen for him to my oath, and to my declaration of my suit, and to all the proofs and proceedings which I am about to bring forward against him; I bid him by a lawful bidding before the court, so that the judges may hear it across the court."

"Then Mord took witness and said, "I take witness to this that I give notice of an assault laid down by law against Flosi Thord's son, for that be rushed at Helgi Njal's son and dealt him a brain, or a body, or a marrow wound, which proved a death-wound, and from which Helgi got his death. I say that in this suit he ought to be made a guilty man, an outlaw, not to be fed, not to be forwarded, not to be helped or harboured in any need. I say that all his goods are forfeited, half to me and half to the men of the Quarter, who have a right by law to take his forfeited goods. I give notice of this suit for manslaughter in the Quarter Court into which this suit ought by law to come. I give notice of this lawful notice; I give notice in the hearing of all men on the Hill of Laws; I give notice of this suit to be pleaded this summer, and of full outlawry against Flosi Thord's son; I give notice of a suit which Thorgeir Thorir's son has handed over to me ..."

"... Then Eyjolf took witness. "I take witness to this," said he, "that I challenge these two men out of the inquest" -- here he named them both -- "for that sake that they are lodgers, but not householders; I do not allow you two to sit on the inquest, for now a lawful challenge has overtaken you; I challenge you both and set you aside out of the inquest, by the rightful custom of the Althing and by the law of the land."

There is plenty more of the same: arguments about the application of law to facts, on behalf of another person, for remuneration. If you did the above in any court in Washington State, you would be lawyering, and you had better have a current lawyer's license.

See also Hrafnkels Saga in which Sámr formally accepts the case from Þorbjörn so that he effectively becomes the plaintiff. rewinn 06:04, 6 October 2006 (UTC)

But to draw the inference that such ancient behavior is analogous to modern lawyering is itself original research unless supported by a citation to a secondary source drawing that inference. The problem with citing old sources translated from other languages is that the translator's bias (or desire to see what one wants to see) may have "colored" the translation (I took a semester of comp lit in college and learned all about this problem). However, the similarity you have pointed out is intriguing, I'm sure some law review article somewhere must have noted it, and I will look out for a secondary source to that effect. Of course, this week I am really busy with motion practice, so that might take a while.--Coolcaesar 06:51, 11 October 2006 (UTC)

• If primary sources are to be rejected because of original research, and secondary sources are to rejected because they interject the bias of editors, wikipedia will be much abbreviated.
• How could translation bias result in Mord and Eyjolf arguing points of law for their respective clients? Are there any authorities that suggest, for example, that Icelandic "laws" were not really "laws" ... and if this were the case, why could not the same be said of the Code of Hammurabi?
• All contributions to wikipedia involve the inference that the material is relevant. If the fact of inclusion is unallowable original research, the wikipedia will be much abbreviated. rewinn 16:38, 12 October 2006 (UTC)

I'm always careful about translation issues as a student of history and philosophy. For example, the English use of the word "heaven" in the term Son of Heaven to refer to the Emperor of China is not quite accurate. The terms "God" and "heaven" in the European Christian sense were extremely difficult for European missionaries to translate into Chinese in the 19th century because the Chinese language as it existed then did not have any accurate, direct one-to-one equivalents for those words (and to some degree still does not). The Italian word prego does not translate easily into English. Neither does the German word Geist. Or the Japanese word ikki. Many languages like Latin have no definite article so it is very difficult to translate English passages into Latin when they rely heavily on the word "the." I can go on and on about this but you get the idea. When one is dealing with pre-industrial societies prior to the rise of the modern nation-state, it is very important to avoid imposing modern conceptions of law upon them. Retroactively imposing modern conceptualizations upon the past is known as the Whiggish approach to history, and it's strongly deprecated among modern historians, who try to understand the past on its own terms.

The point I'm trying to get across is that the Icelandic sagas are valid sources for what they describe, but to then draw the inference that what they describe is lawyering is a step too far. For example, I would cite the case of Pruneyard Shopping Center v. Robins when discussing the actual rule articulated in that case, but I would not cite Pruneyard itself to support the assertion that Pruneyard is a major case in constitutional law (even though that's a reasonable inference). Rather, I would cite a law review article for that additional inference, which is what I've actually done at Pruneyard Shopping Center.--Coolcaesar 05:07, 14 October 2006 (UTC)

None of the preceeding addresses whether what is described in the saga is lawyering. Please describe in what way the actions cited above by Mord and Eyjolf were not lawyering.

• If the argument is that it cannot be lawyering because it was not in English and not in the 21st century, fine; but the article must be retitled Lawyering (21st Century United States)
• Things will go more smoothly without lectures on general principles of history and language; you are not the only person ever to have read a book or attended college classes.

rewinn 02:40, 16 October 2006 (UTC)

The point I'm getting at is that the inference you're drawing is not so obvious as to be inherently obvious without further explanation. Yes, the behavior in those passages appears to be lawyering at first glance, but just because it superficially appears to be lawyering does not mean it is actual lawyering unless one is using a translation with full annotations explaning all possible connotations of nearly every word in the original (which is how Shakespeare and Chaucer are properly studied since the structure of English itself has changed so dramatically from their time). The examples I gave are to show that what appears to be lawyering may be the result of distortions in translation (just as novice laypersons often interpret artifacts in JPEG images to be UFOs or signs of extraterrestrial life, since they are unfamiliar with the underlying vagaries of the discrete cosine transform). Another example of how translation is difficult: Try running some legal language like a credit card cardmember agreement on a round trip through the machine translator at babelfish.altavista.com. Pick a totally unrelated language like Japanese. You'll get a good laugh at the garbage that comes out.

I'm always skeptical about translated sources unless they're fully annotated to show the original "flavor" the translator is trying bring across, however incompletely. The longer the gap in time, place, and language, the more likely that the meaning has been distorted in translation because how past cultures conceptualized everything is just so different from the way we think today. That's why I'd rather rely on a secondary source such as a law review article by a law professor who is thoroughly familiar with Icelandic literature and has the experience and knowledge to draw that inference.

I was just skimming some sources on Infotrac and Google Books this evening and it looks like you're coming at this, whether you realize it or not, from the Malinowski school of legal anthropology which broadly treats any cultural norm as a form of law (and by extension anything that looks like lawyering as lawyering). I'm coming at this issue from a political science perspective which treats law as an extension of the state or sovereign and treats lawyering as an extension of the state's efforts to provide efficient dispute resolution by providing for private representation of parties by expert professionals.

Anyway, I'm still looking for a source which directly calls what's happening in the Iceland sagas lawyering. Notably, William Ian Miller in his book Bloodtaking and Peacemaking: Feud, Law, and Society in Saga Iceland doesn't actually use term "lawyering" in his cogent analysis of the Icelandic legal system as described in the sagas (yes, I used Google Books' full text search). If you run the search on Google Books for that book and then drill down by searching within it for the term "lawyers," you'll come across a great summary of the problem of defining "law" in legal anthropology in Endnote 1 to Chapter 7, on page 356. --Coolcaesar 06:43, 17 October 2006 (UTC)

* Please describe in what way the actions cited above by Mord and Eyjolf were not lawyering.

* If your argument is that law is something determined by the state, then you are defining out of existence a lot of private law and, in the case of Iceland, law that was created specifically to avoid the creation of a classical state. Read David Friedmann (son of Milton Friedmann but brilliant in his own right) on the subject. rewinn 05:54, 23 October 2006 (UTC)

Well, the first example is clearly an assignment. Contingency fee is allowed in the U.S. today only because the client technically remains the master of the case (and that's why many legal systems prohibit such agreements, because of the fear that the lawyer, with his conniving superior knowledge of contract law, will become the de facto master of the case and stir up frivolous litigation). Assignment means the buyer becomes the master of the case and steps into the shoes of the person selling his claim. That's not really lawyering; it's more like acting like a collection agency!

As for the other ones, I will concede that they look superficially like lawyering. But again, please see Wikipedia:No original research, particularly section 2.2 on "Primary, secondary, and tertiary sources," which explains that "Any interpretation of primary source material requires a secondary source." The fact is, you are making an interpretation of the material which goes beyond the assertions in the material themselves. There is nothing in Njalssaga itself where the characters specifically assert that what they are doing is lawyering. You are drawing an inference to support a particular interpretation using your own specialized knowledge in combination with the text, which I agree with because I share such specialized knowledge. But Wikipedia is a general encyclopedia written for a general audience, nearly all of whom lack such knowledge. The interpretation needs to be supported with a secondary source.

Finally, I looked at David Friedman's site and was unimpressed. In contrast, Richard Posner's law and economics analysis is infused with an intimate understanding of how the legal system works, because he actually practiced as an assistant to the Solicitor General before becoming a professor and then a judge. But like most economists, David Friedman's understanding of dispute resolution processes seems to be somewhat superficial, since he has not endured the rigorous study of thousands of opinions which is required for the J.D. My own sympathies in legal philosophy are with more well-known intellects like John Rawls and Robert Nozick---it was Nozick's Anarchy, State and Utopia which caused me to turn away from my brief dalliance with anarcho-capitalism when I was younger. Plus, my thorough knowledge of history makes me quite sympathetic to Nozick's essential assumption that the state has a natural monopoly. Might makes right, which then becomes the law. --Coolcaesar 08:48, 25 October 2006 (UTC)

It appears that in characterizing the plaintiff's lawyer's action as "assignment" you are saying that therefore further action was not lawyering; this is an unfortunate application of cultural myopy, because assignment was the approved form of lawyering in medieval Iceland, medieval Europe in general and in Graeco-Roman lawyering.

As discussed above, if you wish to define "lawyering" as only legal advocacy in the modern United States, then simply re-title the article Advocacy in Modern United States.

I have addressed your baseless claims of OR above and since you add nothing to your claim, need add nothing more. rewinn 03:14, 28 October 2006 (UTC)

Can I just say that it is concerning to me that the article has had a paragraph added that says that the term lawyer in the article is to be confined to its US meaning. Surely that is POV and not something we shoudl approve of in wikipedia. Perhaps it would be better to break the article up and have specifically US things in one place. For example, a solicitor is very much a core member of the concept of lawyer, and even someone in the US would accept they were such, but most have limited rights of advocacy and the majority never conduct advocacy (and would not do so). By contrast very few barristers have the right to conduct litigation (I don't). To say none of us are proper lawyers (there would be almost no lawyers in the united kingdom if this were true) is very very POV. Its fine to note a US specific idea and useful but then the page becomes US specific. Francis Davey 09:36, 28 October 2006 (UTC)

Agree. Legal Advocacy (United States), Legal Advocacy (United Kingdom), Legal Advocacy (Middle Ages) et cetera would be a fruitful approach, rather than forcing this diverse subject into one page. rewinn 01:18, 29 October 2006 (UTC)

Well (to Rewinn), even if you're not watching this now, I'm going to state my rebuttal just in case you do come back. In response to Rewinn's position that he has addressed my baseless claims of OR, I reiterate that he has not responded to the issues I raised above. The accuracy of translation and what can be properly inferred from the work itself are two separate issues, both of which I believe could be addressed by a citation to a reliable secondary source (that is, an article in a respectable journal). Issue one: the translation could be a distortion as I already explained. Issue two: the translation could be perfect but the work itself does not assert that a particular person is a lawyer; therefore, to draw the conclusion that so-and-so is doing lawyering is a subjective interpretation (based on one's knowledge acquired externally of this particular text) which according to Wikipedia:No original research must be supported by citation to a secondary source drafted by someone with the experience and knowledge capable of authoritatively making that interpretation. This is a very subtle concept, like the difference between hearsay and nonhearsay, but any lawyer capable of understanding the bar exma should be capable of understanding it.

Second, it seems to me that you subscribe to the Malinowski view of legal anthropology. I have been reading bits and pieces of a textbook on legal anthropology (in between drafting motions over the past week). The textbook says that Malinowski's functionalist views were very popular and influential during the mid-20th century but that they no longer have any currency. I see no need for this article to adopt a broad view of lawyering which has been rejected by most contemporary anthropologists who specialize in law.

As for Francis Davey, I understand your concerns, but I don't see much of a problem. The definition of practice of law (which the Wikipedia article on that subject summarizes in a crude but accurate fashion) broadly encompasses everything that solicitors and barristers do. If your concern is the focus on the phrase "licensed attorneys," I agree that is U.S.-specific and I will modify the qualifying clause accordingly. --Coolcaesar 08:00, 8 November 2006 (UTC)