Of Lawyers and Samsars: The Legal Services Market and the Authoritarian State in Ben 'Ali's Tunisia (1987-2011)

Article excerpt

The recent history of the Tunisian Bar was symptomatic of repeated attempts by President Ben 'Ali's authoritarian state to subjugate a profession which was meant to guarantee respect for the rule of law and defendants' rights. To this end, the state established an apparatus intended to control the workings of the legal services market and reduce the profession's capacity for self-regulation. This situation led to the development of illegal practices and influenced a majority of lawyers to support the mobilization against Ben 'Ali's regime.

On January 14, 2011, after almost a month of protest movements, President Ben 'Ali fled Tunisia after 23 years as the leader of an authoritarian regime. By their participation in the demonstrations, lawyers accompanied and brought their support to the popular movement. The profession and its leadership obtained considerable symbolic benefit from their position after the fall of the Ben 'Ali regime.

This participation of lawyers in the protest movement cannot be separated from the way the Ben 'Ali regime had attempted to control the Bar. In the authoritarian Tunisian configuration prior to January 14, the legal profession was perceived by the party in power as potentially dangerous for the political order. It was out of the question for the authorities to permit the profession to amass too many economic and political resources.

The recent history of the Tunisian Bar before the revolution had been symptomatic of president Ben 'Ali's repeated attempts to subjugate the profession by establishing control over the legal services market and by reducing the Bar's capacity for self-regulation. The Tunisian state intervened directly in those parts of the legal market where it was the principal client. So lawyers who were loyal to the authoritarian regime had priority access to cases involving state-owned companies and thereby captured a section of the legal services market. The vast majority of the profession, composed of myriad small-scale and non-specialist legal practices, was excluded from this section and was instead exposed to a highly competitive market.

Those non-specialist lawyers who were least endowed with social capital made use of illegal go-betweens, known in Arabic as samsar(s),1 to build up a client-base. The state's tol erance of that practice could be understood as an indirect means of controlling those lawyers who illegally used samsars and thereby exposed themselves to potential criminal prosecution. The Bar authorities, meanwhile, saw the continued growth of this practice as a result of the pressure of competition and had repeatedly asked the state to widen lawyers' sphere of intervention, thus allowing them to increase their market-share at the expense of neighboring professions such as accountants, tax consultants, bailiffs, notaries, and public writers.

In order better to grasp the authoritarian political logic that controlled the legal services market in Ben 'Ali's Tunisia, this article will begin by providing some contextual data pertaining to the professional and social characteristics of Tunisian lawyers.

THE SURVEY

This article is based on the results of the first large-scale quantitative survey to investigate practicing Tunisian lawyers. It was carried out using a representative sample of 626 lawyers (roughly 10% of the total number of lawyers, including trainees) drawn from major urban centers, where over 90% of lawyers practice.2 The survey looked at lawyers from Greater Tunis, Sousse, Monastir, and Sfax - i.e., Tunisia's principal cities. Twenty questionnaires were also filled out by lawyers from Siliana, Bizerte, Kairouan, and Tataouine. Of the 626 questionnaires, over 500 were collected during seminars, conferences, and general assemblies respectively organized by the Bar Council's (Conseil de l'Ordre des Avocats) offices in Tunis, Sfax, and Sousse. A further sixty questionnaires were handed out and collected by students at the Institute of Accounting in Sousse. …

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