GlobalUSAtion: Lawyers, Human Rights and the Contradictions of the Legal Order


BY GILL H BOEHRINGER
Division of Humanities, Macquarie University
Sydney, Australia
Contributed to Bulatlat
Vol. VIII, No. 28, August 17-23, 2008

“First thing we do, let’s kill all the lawyers”
Shakespeare, Henry VI, Part II [Act 4, Sc.2]

“First they came for the lawyers…”
News commentator, re Musharraf’s sacking of Pakistan judges, 2007

“If they remove the fountain of justice, where will the people go?”
Judge of the Lahore High Court, Pakistan, 2008

“Rules established by men who have control of organized power and which are enforced against the recalcitrant by the lash, prison, and even murder”
Tolstoy-a definition of law

“Laissez faire economics is anarchy plus a constable”
Thomas Carlyle

Introduction

In this paper I want to highlight the contradictory nature of law and human rights. As historically and socially constructed concepts and practices they are necessarily contradictory, and therefore must be examined critically to pierce the ideological veil which makes them seem forces solely for good. It is that “common sense” view that needs to be challenged.

The quotations above reflect this contradictory nature. Killing (or removing) all the lawyers is what many would wish to do! Be they dictators/autocrats out of fear of the principled opposition of legal advocates, as in the cases of Musharraf and Arroyo; or those who, as in Shakespeare (on one reading), had seen lawyers consistently and often corruptly oppose the needs, desires and rights of ordinary people. The ideological faith in the capacity of “the law” to protect the common people is typically reflected in the views of the Judge from Pakistan-law as the “fountain of justice”. But Count Tolstoy reminds us of the dark side of law-an instrument of repression used by the powerful against those seen not as humans, rather simply as problems to be “resolved”. Importantly in this age of “free trade”, Carlysle, speaking across the centuries, reveals an historic truth: the freedom of the trader is backed by the sanction of the state.

I start with a brief discussion of the role of the USA in relation to human rights. This is important because of the power of the country but also because of what many scholars have called USA “exceptionalism”. Whatever we might think, the crucially important ideological self-understanding of the American people has been that it is not, nor has it ever been, an “empire”; and that whatever it has done in dealing with other countries and peoples has been done to bring them freedom, civilization, democracy and, in the language of recent times, human rights. Here I want to make the point that what the USA has been doing in the past four decades is not just a few wrong policy choices and/or badly managed wars etc, but part of a historical pattern. It is systemic and structural, not just a recent “failing” to be corrected in the next-kinder, gentler- installment. Change there will be after the disaster of Iraq and Afghanistan, but change ain’t always what we want or need!

Having discussed the role of lawyers in resistance to oppressive regimes, using both traditional court-orientated as well as a variety of non-curial tactics, much of it based on human rights concepts and some of it integrated with social movements’ struggles, I move on to consider some of the problems with “human rights” for a long term revolutionary strategy.

In the last section I look at some of the ways in which it might be possible to move beyond “human rights”, while recognizing that in the contemporary period, the critical struggle for human rights will remain of fundamental importance. Importantly, the struggle for human rights- in the sense of dignity, the absence of inequality and unnecessary suffering caused by oppression and exploitation- cannot be divorced from the revolutionary re-constitution of societies from the bottom up: the constitution of new democratic peoples’ republics around the globe. Speed the day!

GlobalUSAtion , AmeriKa and “human rights” in perspective

Why GloabalUSAtion? Because language is important in anti-hegemonic work, and the USA (which I will refer to as AmeriKa) needs to be singled out for particular obloquy. It is the global hegemon, despite its current domestic and foreign problems. It is the driving force behind much of the oppressive and exploitative activity in the world today. Yet the nation maintains a certain positive aura as a protector of freedom, democracy and “human rights”, while the Bush regime attracts the opprobrium for the nefarious global adventures of the AmeriKan corporate-state axis of evil. It is important that AmeriKa is recognized for the imperialist power that it is and that, unlike in the post-Viet Nam Carter years, it is not able to rehabilitate its international reputation under a new and more charismatic President. Under Carter the country largely regained its stature through a comprehensive “human rights” initiative despite the appalling loss of life and social-economic devastation it had wrought in South East Asia only a few years before.

AmeriKa has been for a long time a major cause of the loss of human rights around the world. Indeed, it commenced its rise to international super-power status, and major “human rights” moral entrepreneur, with
its imperial adventures in Cuba and the Philippines in 1898 and the years following. In both cases, while bringing “freedom” it intervened to block the autonomous development of peoples who were on the verge of throwing off the Spanish yoke in order to grasp their own destiny. It was early “regime change”. (In fact, it followed the “regime change” AmeriKa had engineered in Hawai’i a few years previously.) In the Philippines, as in Iraq and many countries in the intervening years, AmeriKan imperialism was the cause of enormous loss of life. Again as in Iraq with the infamous “Mission Accomplished”, though the President of the USA announced the Filipino “insurgency” was over in 1902, the guerrilla war lasted for many years beyond that with great loss of civilian life, including several massacres in Mindanao, one as late as 1913. And as in Iraq and Viet Nam before it, AmeriKa used a panoply of techniques for “pacification” among which were: torture of many kinds, including the “water cure”; free-fire zones and the correlative forced concentration or “hamletting” of civilians; food, crop, animal and village destruction; wanton killings and massacres of civilians; reprisals against civilians for revenge and/or deterrence; executions of guerrillas, in particular leaders such as Sakay (in 1906) after surrender on promise of amnesty; denial of combatant status and re-labeling as ladrones or bandits; use of military commissions and kangaroo courts. And it should be noted that one of the two most famous “pacification” campaigns, the “battle for Batangas” in Southern Luzon, in which most of the tactics indicated above were used, is today the subject of study in US military institutions.

GlobalUSAtion and lawyers resistance

I am using the concept of globalization in a particular and limited way. Here it refers to the processes-political, military, and economic-whereby countries around the world have been brought under the domination of the USA and its “allies”, using the alphabet soup of international institutions (UN, WTO, IMF, etc) and the World Bank. A major effect of this has been to dramatically increase and deepen poverty while increasing disparities in living conditions significantly, at the same time placing the human rights of hundreds of millions people under grave threat.

In a recent paper Stuart Russell and I have discussed the role that lawyers in four different countries- Pakistan, Philippines, Malaysia, and France- have played in resisting state policies which were, directly or indirectly, responses to GlobalUSAtion. While the well known phrase from Shakespeare “First thing we do, Let’s kill all the lawyers” might find widespread support from those who have experienced the calumny of traditional lawyers weaving their magic on behalf of the state or corporate power, and historically from many on the Left, today the image of lawyers is more clearly contradictory. Lawyers are also playing an important, often courageous role, in resisting oppression and exploitation across a wide range of issues. The argument made in that paper is that as the process of globalization proceeds apace, the state, to maintain the crucial façade of democracy, is increasingly required to act under color of law to maintain the conditions of existence whereby multi-national (and national) capital can continue to exploit the masses and their natural resources. Even authoritarian states try to maintain the conditions of their own existence under color of law in order to try to minimize the perception of illegitimacy and possible efforts for regime change from internal or external forces. In part this is because of the current strength of the discourse of human rights.

It is the dependence by states, and capital, on the legal order which has put lawyers in a strategic position of great importance. It has called forth lawyer- resistance in the courts and, latterly, outside the courts, usually integrated with other social movements but occasionally as a separate body of lawyers. In each of the four countries, lawyers have played a significant, even a leading part, in public resistance-outside the courts- to state attacks on human rights. In three countries lawyers went on strike and demonstrated vigorously against specific actions and policies of repressive regimes. In Pakistan the lawyers- resistance movement was an important factor in the electoral victory of Musharraf’s opponents. And the lawyers’ movement in that country, under the leadership-at least symbolic- of the Chief Justice, continues to play an important role in the politics of constituting the new government and the heralded reform program.

In the Philippines, progressive lawyers have played an important role in opposing the corrupt and vicious Arroyo regime. While there have not been lawyer strikes, as far as I know, lawyers have been comprehensively engaged in resistance activity both in and outside the courts, as well as in anti-regime activities of a densely organized and courageous civil society. Tragically, but perhaps not surprisingly, a number of lawyers have been assassinated by agents of the state during Arroyo’s governance.

Much of the lawyer-resistance activity has been based in struggles for human rights. It is clear, then, that the concept of human rights, institutionalized at the international level in the Universal Declaration of Human Rights, and the two Covenants-on civil and political rights, and on social, economic and cultural rights- provides an important ideological basis for challenging state and, perhaps to a lesser extent, corporate activity in denial of those rights. It is fair to say that around the world, the appeal to human rights has been a strong weapon in struggles for democracy, justice, equality, and the protection of our environment.

Michel Foucault has written:
“It seems to me that the real political task in a society such as ours is to criticize the working of the institutions which appear to be both neutral and independent; to criticize them in such a way that the political violence which has always exercised itself obscurely through them will be unmasked, so that we can fight them.”

While the extent to which law appears “neutral and independent” varies from country to country-perhaps from North to South- and surely from class to class, I think we can agree with the general thrust of Foucault’s message, and here apply it to the concept, and practice, of human rights which carries with it such ideological power.

Human Rights and “Humanitarian Intervention” in a Globalising World

In this and the following section I want to look briefly at some problems and limitations of human rights. Perhaps the most problematic issue in contemporary human rights discourse is that of “humanitarian intervention”. It is a broad and historically laden concept which I will briefly introduce. What we are faced with is the reality that many countries have used the moral and emotional appeal of human rights to justify intervention in other countries. Sometimes such intervention is based on a combination of reasons, including, eg, security (Tanzania’s invasion of Uganda which led to the destruction of the repressive Amin (Regime); restoring to power an unlawfully deposed government which had previously been democratically elected (the USA in Haiti, at that time backing President Aristide). Sometimes there are fundamental strategic reasons, as we have seen in Iraq where the USA justified the invasion in 2003, particularly ex post facto (no WMD having been found), as being in the interests of the Iraqi people and their human rights. Some of these interventions are unilateral, some multilateral, and often with some degree of involvement/commitment of the United Nations. An interesting current debate has arisen about Burma, the problem for the Left presented by the catastrophe there and the attempts to force solutions on the regime of the Generals.

I have mentioned only a few “human rights” or “humanitarian interventions”. There have been many more, especially in recent times. (In earlier times, colonial interventions were often justified as bringing “civilization” to savages or bringing “Christianity” to pagans etc). If it is a universal concept such that there ought to be interventions whenever there are substantial human rights under threat, then given the appalling and widespread violations of human rights in the world today, we could expect to see a world of continuous conflict. But, of course, we do not. Such interventions tend to be highly selective regarding those who are to be protected and those who will be left unprotected. We are well aware of the shameful history AmeriKa has in supporting, and installing, brutal regimes around the globe. Surely it is not being cynical to suggest that strategic rationales-not least what is good for capital- play a fundamental part in determining who gets to “benefit” from “humanitarian interventions”, some of which, perhaps most, are certainly “imperialist interventions”. That they are overwhelmingly North v South is surely strong evidence of that proposition, particularly in view of the historic and systemic exploitation of the latter by the former.

In the period of AmeriKa’s overseas imperialism commencing with Hawai’I in the 1890s, I believe the USA has been the leading intervenor in the world. ( and I am bracketing the “Indian Wars”, the “Mexican Wars” and the ideological “Manifest Destiny”-not to mention the hypocritical Monroe Doctrine-plus Japan and China in the latter half of the 19th century and early 20th). It has also been the leading purveyor of “humanitarian intervention”. Its massive power to do so remains, despite the morass it has jumped into in Iraq and Afghanistan. In this “post-Westphalian” context where national sovereignty and the (theoretical) strict limits on the use of inter-state force appear to be subordinated to the market imperatives of global capitalism, the use of “human rights” as a major ideological justification for future interventions seems certain.

Of course the use of “human rights” as an ideological weapon does not mean that we need turn our backs on the idea of resisting their violation. Nor does it necessarily mean that all state/multi-state/UN interventions to solve human rights abuse should be condemned, although that could be seen to be a reasonable principle given the historical record. Nevertheless, I would be reluctant to adopt what was after all a principle established to ensure peace and stability-as it suited the protagonists-in the interest of protecting emerging nation-states and capital accumulation. There may be positive examples (eg Cuba in Southern Africa-if that had been the USA we would surely have seen it in less positive terms!) which demonstrate that this is a matter to be decided on perceived consequential grounds: will it work for the masses, and is it really about human rights? In discussing means and ends generally, Trotsky, in debate with the American philosopher, John Dewey, argued that not all means are justified but the means would be justified if the action really has the tendency to liberate mankind. A major practical problem with that approach is, of course: who gets to decide? Given the record, one would have to assume it would normally be those with the most power (Iraq demonstrates this well. Around the world the masses opposed the invasion while the UN was suckered by a deceitful AmeriKa). But again, life is full of contradictions, and one of the opportunities presented by aspects of globalization is the capacity for progressive forces to join together in constituting an international standard regarding the use of force to intervene for humanitarian purposes.

Another way to look at the issue is to ask: what is the alternative to state(s) or international intervention? What should we look to in the longer term? I would argue that we need to look toward the strengthening of the political power of the masses to act both nationally and internationally so that they eliminate the need for external intervention by anti-liberatory institutions such as the capitalist state(s) or even international
institutions such as the UN which are largely under their control.

Contradictions of Legal Order: against and for positivism

In this section I will raise and very briefly discuss some of the issues which are now being widely discussed in the debate over rights in a globalized world. In some respects, these are issues which have been discussed for more than a century on the Left, going back to Marx and Engels, and even further in the long history of the emergence of what we call today human rights.

First, law is a cultural artifact which is socially constructed within a particular social formation and therefore takes a particular form. In its contemporary form, and in the form most of us experience it first-hand, it is, generally speaking, “posited” by the state. It is what provides -or denies- us our rights. It is called “positive” law. In a capitalist society, even in a democracy, the law will largely reflect the interests of the wealthy and powerful. It could not be otherwise. Yet by its very nature, it is a site of struggle over legislation (Marx provides us, in Capital vol. 1, with a discussion of struggle over the Factory Acts); the interpretation of both the letter and spirit of the law but also the “facts” of the case; the policies and consequences to be considered-perhaps even including a discussion of the history of the emergence of the law; implementation of the law, or not; sanctions under the law; and reform of the law, or not. Then, especially today, there are struggles in various related sites, about whether other institutions should be created- Boards,Tribunals, Special Courts,etc-for determining, in different ways, the ‘rights” of persons or entities. In all of this, there is room for the assertion of rights against the state and against the wealthy and powerful. Thus I would argue-and there would be those who write off the argument- that we can ill afford to take an ultra-Left line and ignore the possibilities of positive law in contemporary societies. I will say more about our Filipino lawyer comrades (not that they need me to say it for them!) but they have demonstrated over the years how important contesting state and corporate capital in the courts really is. I suspect Prof. Sison may have a strong view on the contradictory nature of positive law after his recent experiences.

While human rights can be protected in the struggles within positive law, they are certainly limited by the nature of bourgeois law. It is state law, and the state, in general, disfavors the poor, marginalized, and Others in society. Further, the rights that are generally given protection, however weak, are individual rights not collective rights; further, the rights which are protected do not tend to be economic, social and cultural rights. Thus, while we can be for positive law, we also need to be against positive law in the sense of seeking more and different protection. I am here referring to what has been called law-from-below in contrast to the concept of positive law. Now there is a more radical view emerging, specifically focused on law and globalization, which I will refer to as subaltern counter-hegemonic legal struggle (SCHLS). A leading writer in this movement, De Sousa Santos, uses the phrase “subaltern cosmopolitan legality” which he sees as the legal counterpart to “counter-hegemonic globalisation”; there are other versions, but we speak the same language in general! What is being referenced is the movement amongst progressive lawyers and their allies to contest traditional philosophical and political frameworks, concepts, methods, practices of “top-down law”. It is in that sense against-positivism, state law and the traditional understanding of law from above ie that it should protect the wealthy and powerful and operate to exclude, exploit and oppress the masses. As De Sousa Santos puts it

“(S)ubaltern cosmopolitan legality follows the path of counter-hegemonic struggles first theorized by Gramsci…counter-hegemonic politics and legality aim to erode the ideology and coercive institutions that sustain and naturalize the hegemony of dominant classes and groups….Counter-hegemonic politics and subaltern cosmopolitan legality, however, go beyond this deconstructive phase. Indeed, they ultimately seek to offer new understandings and practices capable of replacing the dominant ones and thus of offering a new common sense.” It is a project which he argues “is both a critique of dominant conceptions of low-intensity, representative democracy and an ambitious proposal for the radicalization of political and economic democracy”.

Not surprisingly, the methods of SCHLS are different from those of traditional lawyering and, to some extent, go beyond those of radical lawyers involved in more traditional, litigation or law reform focused, human or civil rights struggles. SCHLS can be imagined as “all-in-wrestling” with the state. All progressive forces are tapped, in networks and alliances, to radically re-configure the “legal field”. The strategy of SCHILS is the mobilization of these forces, in all manner of activities- legal, illegal and non-legal- at all levels-local, provincial, national, regional and international- using not only courts but any other institutions which can be harnessed to the struggle. The immediate goal is to seek variation in the patterns of positive law concepts and practices which create exclusions, inequalities, abuses, but also to support the masses as they insert themselves further and more effectively in counter-hegemonic struggles around the globe. While much of this thinking is just emerging in the North, there are numerous examples of SCHLS across the South and some in what has been referred to as “the inner North” (or what used to be known as the “internal colonies”). In the following section I will exemplify SCHLS in a case study which I have been working on and which others here know at first hand-the struggle in the Philippines against the Arroyo regime.

SCHLS in the Philippines

Filipino lawyers have played an important role in the resistance to the neo-liberal regime of Arroyo which has an appalling record of repression, corruption and devastation of the environment in concert with the TNCs which have been pillaging the country for years. The policies of the regime-and previous regimes it must be remembered-have resulted in a chaotic economy which has typically seen the rich enriched, the poor further immiserated, and the country turned into the largest importer of rice in the world. Resistance to the regime has taken many forms, at a great price: nearly 1000 have been killed (including lawyers and judges), hundreds disappeared and/or tortured. Harassment/intimidation is widespread, not least at election time when even corrupt actions (vote fraud) by the President were not deemed to be sufficient to ensure electoral success for reaction.

What has impressed me is the density and sophistication of Philippine civil society, and the strength and determination of the progressive sector. Across the country there is active resistance to various programs of the state and activities of the TNCs. A comprehensive system of networks and alliances involving traditional and new social movements, NGOs and sympathetic institutions including some sectors of the religious community. Links with progressive political parties are also strong. All of these provide the manpower, resources and communications which are pro-active, as well as reactive, in the constant counter-hegemonic work eg regarding trade union and other labor struggles, peasant struggles for land and the protection of the environment which also draws in fisherfolk, and a host of other areas of resistance. As in other sectors, there is a national force-the National Union of Peoples’ Lawyers, as well as a loose federation of local and regional lawyers groups. In the entire gamut of counter-hegemonic resistance, progressive lawyers have been in the thick of struggles. They have often acted, with rapidity and acuity in defence of the civil and human rights of those being attacked by the state. They have also counter-attacked by challenging “terrorist legislation”, the ironically named Human Security Act of 2007; and they have carried a large part of the burden-with other sector support- in the national and international exposure of the atrocities committed by agents of the state, ie human rights violations in the form of Extrajudicial Killings and Disappearances. It is not an exaggeration to say that the regime has felt the “heat” from the constant “shadowing” of state activity by the lawyers using a variety of techniques. One of the results of the combined pressure upon the state was the extraordinary national Summit on Extrajudicial Killings and Disappearances called by the Chief Justice in 2007. From this came a number of positive recommendations. Several have been implemented, including new legal weapons (writs) to be used by lawyers against the state in protection of security rights of the people.

This political intervention by the Supreme Court judges is a good example of the contradictions of legal order, given the historic understanding of the neutrality of the judiciary. Another somewhat unusual example is the 2007 French lawyers’ strike against Sarkozy neo-liberal reforms of the legal system: to close many local and regional courts and to reduce the availability of legal aid (while decriminalizing certain white-collar activity, and imposing longer/indeterminate custodial terms on some sex offenders). It was nation-wide, creative and militant, involving senior lawyers, judges, bar associations etc. However, some of the judges involved in the strike were also amongst those who applied severe sanctions to “rioting” migrant youth in the banlieu of Paris, some of the very people who would be disadvantaged by the closure of the local courts.

In the end, the reforms were largely pushed through. But other lawyer resistance actions we have studied have been more successful, eg Malaysian lawyers’ demonstrations against abuses in the long-drawn out Anwar matter, and in solidarity with Hindus being discriminated against; and of course, most dramatic-the Pakistan lawyers’ demonstrations which were crucial in the developing resistance to Musharraf.

Budgeting” for social justice and human rights

In recent years a number of techniques have been used by lawyers and their allies in the struggle to demonstrate the culpability of repressive states. These would include Popular Courts/Tribunals such as the Permanent Peoples’ Tribunal. Another important contribution is the monitoring and recording state activity and publishing it widely, as Karapatan has so successfully done. In recent years the notion of “budgeting” has developed in many countries, two of which, Tanzania and Brazil, are useful to note here.

In Porto Allegre, Brazil “participatory budgeting” brought direct in-put from the grassroots into decisions on budgetary allocation and policy. In brief, this was possible because of the strength of the labor movement and the Left generally. Although it was extra-legal, the strength of the workers and the Left made it possible. Institutions were created outside the formal legal political structure, and the political situation was such that they had to be recognized as a legitimate part of the budgeting process.

In Tanzania, “gender budgeting” developed as a response to the negative effects on women, especially poor women, of the neo-liberal policies of the Tanzanian government, particularly after it was forced to capitulate to the IMF and undergo a “Structural Readjustment Program” in the 1980s. It was basically the mobilization of a coalition of progressive forces to 1) analyze state resource allocation and a range of policies to evaluate the effect on women,( later broadened to include poor and excluded groups generally because of the reality of interdependence); 2) to examine the role of TNCs and imperial links; and 3) to develop a democratic , informal extra-parliamentary “opposition”. Having done this, over a period of years, they were capable of bringing a transformative agenda to the public, and to bring pressure on the local, then higher levels of government-using national and international links- lobbying, demonstrations etc to try to achieve a re-distribution of resources which would be consistent with the agenda they had developed at grass-roots level.

Conclusion

I have only seen reports on these processes. Obviously there are potential problems, such as cooption and providing legitimacy for the state, as there are in any counter-hegemonic program. There are advantages as well, in developing capacity and consciousness of those involved. I suggest that a similar program for social justice and human rights might be worth considering as a part of SCHLS. In summary, building a coalition of forces which would have the kind of focus indicated in the Tanzania experience: analysis of government policies specifically dealing with law in order to assess the effect which legislation and court decisions have had, or will have, on the people i.e. is there, or is there likely to be, a negative result in terms of social justice and human rights?; putting the analysis in the framework of a progressive agenda to be fought for; and organizing grassroots “opposition” behind counter-hegemonic understandings and practices of law to try to de-mystify the legal framework in which the state and TNCs operate.

As a first step, as a legal academic, I recognize it will be necessary to challenge the traditional teaching of positive law in our Universities, a process of which I have some, mixed, experience! Contributed to Bulatlat

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