Abstract
AbstractThis article examines the role of cause lawyers in conflicted or authoritarian contexts where the chances of legal victory are often minimal. Drawing upon the literature on resistance, performance, memory studies, legal consciousness and the sociology of lawyers, the paper examines how cause lawyers challenge and subvert power. The paper first explores the tactics and strategies of cause lawyers who boycott legal proceedings and the relationship between such boycotts and broader political struggles, legitimacy and law. It then examines why and how cause lawyers engage in fairly hopeless legal struggles as acts of instrumental resistance (the ‘sand in the cogs’), transforming courts into sites of symbolic resistance, and using law as a form of memory work. The paper argues that boycott of and resistance through the courts can counter the use of law as an instrument of wickedness and a tool of denial and preserves a ‘stubborn optimism’ in the rule of law.
Highlights
One of the basic precepts for lawyers working in any democratic legal system is the notion that, with the application of due legal skill and ability and a fair judge, there is at least some chance of a just outcome.[1]
We examine the practical, moral and political reasoning invoked by cause lawyers who decided to boycott legal proceedings
In spite of low expectations of justice in general, there was widespread recognition that law had a role to play in such contexts. Having noted that he ‘never’ expected to get justice during apartheid, one South African cause lawyer added: ‘.... but the courts became a hell of a site of struggle.’[100]. As with our analysis of lawyers’ perspectives on boycott, we have carefully reviewed our interview data to identify overlapping themes that highlight the different ways in which cause lawyers turned courts into sites of struggle
Summary
One of the basic precepts for lawyers working in any democratic legal system is the notion that, with the application of due legal skill and ability and a fair judge (or jury), there is at least some chance of a just outcome.[1]. All were highly conscious of the risks posed by participation in legal proceedings which had, at the very least, fluctuating levels of legitimacy By examining both boycott and styles of resistant engagement in what were often hopeless legal proceedings we hope to better understand the role that law plays, as an instrument of struggle, and as a resource for envisioning a better society. We examine the practical, moral and political reasoning invoked by cause lawyers who decided to boycott legal proceedings. These include: the degree of organisation and commitment on the part of cause lawyers; the extent to which the system ‘needs’ the engagement of lawyers; relations between lawyers and oppositional forces; the role of external variables such as international power relations and timing; the perceived legitimacy of lawyers’ actions; and the need for an alternative legal vision. We explore the dialectic between boycott and resistant engagement and argue that, at the core of both strategies, is a ‘stubborn commitment’ to law as a viable alternative to violence and authoritarianism
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