VIth International Marx Congress, Plenum 3, Israel Liora
Mobilizing the law for the benefit of revolt: is it utopian?
Congrès Actuel Marx 2010, Nanterre
Par Liora Israël
Maîtresse de conférences à l’École des Hautes Études en Sciences Sociales
Associating the theme of revolt to that of the law is not obvious, and those two wordslaw and revolt can even seem contradictory. Law is first and foremost that which circumscribes, regulates, bans and prescribes: it is the main source of norms in contemporary societies, but it is also the foundation in the name of which a certain number of practices can be sanctioned. Political actions themselves are framed by the law, whether it is voting, the limits to rights of striking, or else the possible ban on some political organisations.
If however the law can be a vehicle for protest and awareness, it is thanks to what it allows, via its own canals. It is the study, from a sociological point of view, of those possible forms of questioning of authority through the law that gave me the title for a short book that came out recently, called “The Weapon of the Law” and which allows me to be here today. The law can be used as a ground for contesting, or even for some forms of revolt, and that is possible on different levels. First there is legal action, through which anyone who feels they have been wronged may ask for reparation, or for a sanction against the person or the body that inflicted the wrong, and who is thereby held responsible for it. But other canals can be imagined as a parallel to litigation, whether it is the threat of legal action, or backing one’s claims with references to the law, or else mobilization in order to change the law.
If all those forms of action are indeed ways of acting or even contesting through the law, they are not all equally accessible, as many sociological studies have shown: the possibility of litigation depends on one’s social origin, and even within the judiciary field, chances of success are unequally distributed from a social point of view[1]. The law and even more so the appeal to the court are therefore quite constantly ambivalent: if the feeling of revolt may lead one to turn to them, the reality of their functioning leads them more often than not to confirm the status quo rather than question it. The dependence of justice on dominant interests may actually be the source of a feeling of revolt, when the gap between justice in its moral sense and its incarnation within an institution becomes too wide. Yet there are circumstances in which the law and justice can contribute to changing things as they are, and turn out to be useful to those who revolt against the establishment. These are the fragile moments that I shall focus on in this presentation. I will therefore try to make my way through the idea according to which the law and justice present more obstacles than support to political and social change and the symmetrical illusion that they should be resources easily resorted to in social movements.
I. The law as shield and the law as weapon.
For a long time the law was believed within Marxist thought to legitimise domination, and to contribute to preserving class interests under the guise of an incarnation of the common will, as the young Marx said about the law in his text about the theft of wood. These ideological obstacles against litigation have left a durable mark on the union movement, which used to be wary of it, as opposed to more conflicting modes of action, such as striking or protesting. The judiciary institution, which was often perceived (and quite rightly so) as distant and partial to the powerful, did not encourage individuals to turn to it. Historically, and particularly in the French context, more than a mode of contestation or protest, the law has mainly been perceived as some kind of constraint (for example when an individual was forced to defend him or herself following legal proceedings) or as a form of state initiative (the goal being legislative reform through political struggle). Several inflexions nevertheless allow us to understand which factors, over the last decades, have deeply modified the representations and the modes of actions that are now considered by very different kinds of actors on the legal field.
As was accurately shown by American jurist Richard Abel[2], there are circumstances in which the use of the law is particularly efficient in order for one to be heard by the establishment. This capacity to question the authorities through the law has had many illustrations in the 20th century, and some activists even went as far as provoking “sometimes deliberately the beginning of a legal action (that is, against them) in order to protect themselves from a legal standpoint and to use the court as a stage to express themselves”. Abel then goes on to talk about the suffragettes movement, conscientious objectors, Gandhi and his followers, anti-apartheid fighters in South Africa, civil rights militants in the United States, anti-nuclear campaigns, etc… A whole range of movements, in different times and places have used the law to support themselves. Within them, Abel distinguishes two types of use: defensive uses of the law, in which it is rather considered as a shield, and offensive uses – this is rarer in social movements – in which it is used as a weapon. The former strategy may be more costly and hazardous, yet one of its advantages is to force the courts to pronounce themselves and to give grounds for their decisions, which helps to publicise a debate, regardless of whether the party wins or loses once the verdict is pronounced. Through several examples (regarding legal action as well as legislative lobbying), Abel identifies several recurring features: a struggle backed up by the law is more likely to come through when a government is dealing with its reforms, it has more impact when the periphery of the power is targeted rather than its centre, it will more often have an effect when the elements are sued through proper legal procedures (the courts are rather reluctant to make decision of a political nature). More generally litigation is more efficient as a shield against abuse than as a sword to reach one’s goals.
Abel’s study allows us to understand the political impact of the law, particularly when it is wielded by political or social movements, associations or NGOs. This study also draws our attention to the different historical and especially national contexts in which the law has been used. From this point of view, it is interesting to compare the United States and France: in the first case, the law is essentially perceived as a protection of civil liberties, for example against potential abuses from the State, and litigation has a particularly crucial role in a common law country where the evolution of the law can have deciding consequences. Conversely, in France, legislative reform is more determining in the evolution of the law, even if it means overruling a court decision by the creation of a new piece of legislation. These differences are linked to national legal cultures and may nevertheless be qualified today with the globalisation of the law (the European construction and treaties), the exchanges of practices, the internationalisation of the uses of the law, i.e. the use of different legal systems in order to defend a cause (in the case of the environment, for example). In this context, anti-establishment uses of the law rely on the evolutions of the legal world just as they make them more concrete: legal innovations are created by those who resort to them and thereby testify to their field of action and to their limits. It has been the case over the last few years with universal jurisdiction, which at the same time gave birth to great hopes by opening the way to new types of legal actions (with the case against Pinochet) but was limited – in Belgium for instance – for reasons of diplomatic “realism”, which restrained it to use against Western leaders.
2. Legal actors and resorting to the weapon of the law.
One classical figure of the relationships between justice and politics in France is that of the lawyer-politician, as this profession tended to be overrepresented in the political staff, especially during the Third Republic, although less so since the creation of the École Nationale d’Administration in 1945. Lawyer-politicians have often been associated with the development of political liberalism, the development of the Republic in France and the defence of the rule of law in most countries, as illustrated today by a few Russian or Chinese lawyers who try to have such issues as defence rights or freedom of speech respected, despite the threat against their lives. However the question of the lawyer’s commitment does not limit itself to the defence of the rule of law: it must take into account the fact that the professional practice of the law is taking on a political quality, when for example a lawyer decides not to defend a certain type of clients for political or moral reasons (for instance underprivileged populations or union workers). The orientation of one’s practice of the law in favour of some causes may also result in one’s commitment, inside and outside the court, to the defence of a representative of the said cause, the trial then allowing to publicise a problem or a struggle. Some lawyers have therefore managed to associate their names with a cause, whether it is, in the French context, Robert Badinter, who fought against the death penalty, or Gisèle Halimi in her struggle for legal abortion – two famous examples from the 70’s – or in the American context, Ralph Nader who committed to consumers’ rights.
The commitment of lawyers is relatively legitimate, even though their colleagues sometimes blame them for endangering the respectability of the profession and the idea that the client’s interest comes first (before the cause), but the commitment of judges seems even more difficult to justify as they appear to be characterized by their impartiality.
Yet some of them try to find a middle ground between their professional practice and their political commitment, and even sometimes to progressive causes. As I have tried to demonstrate in my PhD thesis, dozens of judges, albeit a minority, took part in the clandestine battle of the Resistance under the Vichy regime, sometimes by using the resources they had access to in their profession (they had access to the prisoners, to the elements in the case files, they knew about police investigation and so on.)[3]. Beyond this exceptional period, the profession of French judges went through a series of dramatic changes in the second half of the 20th century which enabled new forms of commitment to emerge. The creation of the Syndicat de la Magistrature (SM – Judges’ Trade Union) in 1968 was perceived as a real provocation in this particular background, as it threw a bridge between judges and the working class and working-class struggles. This union which rapidly became very successful, while concerning only a minority, allowed to legitimate a new form of intervention of the judge in the social field. These judges turned out to be able to create quite a commotion, as when a young judge from the SM famously charged and placed in custody a company head for manslaughter following the death of a worker. This episode earned the members of the union the name of “red judges”. In Italy or Germany, similar movements developed around the end of the 60’s..
This new alliance between their claim to independence from power and their claim to professional competence, linked with a common training, will give way, as Violaine Roussel has shown, to the spectacular decisions made by certain judges in some political and financial scandals of the 90’s. This was the occasion to question the implicit taboos as well as the effect of social connivances which had up until then protected the world of politics from the intrusions of the courts[4]. From then on, the power of judges was to be questioned, praised or conversely criticized, while some started talking about “the government of judges”, something that can be heard once again today in the context of the tension between justice and politics in the Woerth-Bettencourt case.
3. The use of the law by social movements: May 1968 as a turning point
With the example of France, it is possible to highlight the emergence of new practices of the law in the second half of the 20th century, that are more or less integrated to the activities of political and social organisations, mostly left-wing. As a representative of those innovations, one can think of the Mouvement d’Action Judiciaire (Movement for Legal Action), which was created at the end of the month of May 1968, first as a reaction from jurists who supported the events of May, then as a think tank involving “law workers”, as they called themselves who wished to gear their practice towards new political and social struggles.
The MAJ, the SAF (Syndicat des avocats de France – French Lawyers’ Union – created in 1972), the SM, all these acronyms stand for new forms of law professional organisations who directed their actions and reflections towards other actors of the political or social struggle, among which confederate unions (CGT or CFDT, for instance, relating to industrial tribunals), traditional associations for the defence of human rights such as la Ligue des Droits de l’Homme (the Human Rights’ League), or members of associations. Within the former category, new organisations appeared, and they represented what sociologists quickly dubbed the new social movements: feminism, environmentalism, minority rights… Each of these new forms of struggle were matched with new uses of the law, be it with the creation of law organisations dedicated to a new cause (with the creation of the Groupe de Soutien aux Travailleurs Immigrés in 1972 – Immigrant Workers Support Group), or new legal advisory panels, for example in the MLF (Mouvement de Libération des femmes – Women’s Liberation Movement). These new social movements, which were often supported and managed by young lawyers, or committed judges, were characterized by a more offensive and critical use of the law. The idea was to give access to the law to as many people as possible, and thereby demystify it, following the endeavour of committed jurists who, around the same period, created law shops and collective thought workshops conceived as cooperatives in the service of various struggles (with for example the Ornano workshop that was created by Georges Pinet and Henri Leclerc in 1973).
It is essential to understand how much of a turning point the 1970’s were in order to emphasise the emergence of new ways of employing the law, which both stripped it off of its sacred aspect by making it more accessible, including to the profit of struggles and marginalised parts of the population, and at the same time legitimised it by making its use more familiar. This is probably why the use of the law became a more usual and progressively less subversive weapon within the repertoire of protest once the post-May 68 turmoil was over.
4. The powers of the law in time and space.
One feature that was both a strength and a weakness in political usages of the law in the 1970’s was their utilitarian approach to it. This was based on a Marxist-inspired conception, and was supported by authors such as Poulantzas or Pashukanis, and had allowed the development of both critical and instrumental uses of the law. This instrumental dimension was apparent in the use of terms such as “the law as a tool” or “law workers”, and its aim was to get over the intimate relationship between the law and the State, and thus the legitimisation of power associated to the wielding of that legitimate knowledge. The question of the legitimacy of the law is indeed at the heart of the paradoxes and the scientific scope of the legal weapon. It seems to be met by new topics and new tensions that can be presented quickly as a conclusion.
One of these dimensions has to do with the extension over space and time of universal jurisdiction, more particularly in the field of international criminal law. It is characterized by the imprescriptibility of crimes against humanity that was decided in the aftermath of World War II, or the possibility of prosecuting across borders that was made possible by the creation of international jurisdiction. This extension of the struggle through the law, following military conflicts or civil wars most of the time, is supposed to be both retroactive and deterring on an international scale. It also corresponds to an increased awareness of the status of the victims, whether it is during a criminal trial, or on the scale of international relationships (with the acknowledgement of the genocide of Armenians in an Act of Parliament, for example). This awareness of the status of victims does raise some questions, since it can be contested as a manipulation of memory over history, or because it may encourage a punitive conception of justice on an individual scale. However, it does open new perspectives of action, including in the field of human, economic and environmental rights, which are progressively acknowledged and may be used as a ground for litigation, as for example against multinational companies (the Total case that deals with the firm’s activity in Burma, that is still going on in Belgium, for instance). This internationalisation of legal struggles represents a heavy financial load on the NGOs, who must acquire very specific legal skills and engage into long and costly legal actions. The long time of the law does not always correspond with the violent wind of revolt.