By Payoshi Roy
“How can progressive lawyers remain relatively true to their moral convictions and political goals”?
To call oneself progressive is a bit presumptive[1]. It is I believe a label that can be given by others and only in retrospect. However, many of us who have legal training are deeply troubled by the status-quo and spend varying degrees of time in finding ways to challenge it. To those of us who spend majority of our time preparing briefs and walk into court every day as a means of challenging hegemonies of power, Professor West is kind. He asks very little of us. Only that one remains relatively true. He also allows us the cushioning that our work is not entirely without meaning and says that we may perform crucial defensive work, build historical narratives, and facilitate social work.
If one is committed to resistance and transformation, it is critical to honestly interrogate our forms of resistance and not allow ourselves the indulgence of any illusions regarding its purpose or limitations. Old, ill, in his own words “a broken man”, Yeats in ‘The Circus Animals Desertion’ one of the last poems he ever completed in the year before his death, lamented the loss of his “circus animals”, the themes he had spent his life writing about. In the face of death, robbed of the paraphernalia with which we embroider meaning onto our work, Yeats wrote
“ Now that my ladder’s gone.
I must lie down where all the ladders start
In the foul rag and bone shop of the heart”
I will therefore attempt to answer the question Professor West poses, honestly, critically, shorn of our circus animals and the cushioning that Professor West so kindly gives us, and from the foul rag and bone shop of the heart.
The limitations of the practise of the law are plenty and well known. Admittedly as Professor West succinctly articulates “fundamental forms of social misery neither can be adequately addressed nor substantially transformed within the context of existing legal apparatus structures.” This is a relatively mild criticism of participating in the apparatus of the law. That one’s efforts can scarcely bring about substantial change is a bitter but imminently swallowable pill. The Faustian bargain that prompts the question “how does one stay true to their moral convictions” was brokered in the premise that the ‘rule of law’ is a creature created to protect status quo and the prevailing hierarchies of power. The nation state has historically exercised violence through the apparatus of the law [2] and as Agamben aptly warned – the use of the state of exception to oppress minorities has become endemic to nation states.[3] Democratically elected governments that use institutions of the law to perpetuate historic inequalities and injustices of caste, race, class and gender rely on the mythology as Roland Barthes put it that the law is fair and just and provides for fair procedure[4]. By participating in such a proceeding, we as lawyers often not only legitimise the state but actively contribute to the myth making that paints grossly oppressive actions in the colours of justice.
In response to this criticism, I know many believers in the eventual victory of transformative constitutional values would point to landmark constitutional victories that have widened, enforced and upheld fundamental rights. These victories are what Professor West defines as the extension of liberalism. As he astutely identifies, these victories are not occasioned by a reduction of cultural conservatism or because of judicial resistance to cultural conservatism, but because judicial review and an elected body of people were responding to social pressure on the ground. Courts are only ever as strong as the social fabric that sustains them. For instance, in the Indian context long and hard-won victories such as the decriminalisation of homosexuality were seemingly won in courts. These judgments however came at the fag end of long and bitter struggles on the ground. The verdicts arrived after a series of judicial rejections at a time when society had changed and courts could no longer deny what society had accepted. The golden era of liberal judicial activism in India or what is known as the PIL[5] decade, came only in response to the harsh denial of fundamental rights during an imposed constitutional emergency and ended as soon as the visceral trauma of those years faded from public memory. Further as Derrick Bell points out some liberal constitutional or civil rights victories as with Brown v Board of Education “all too frequently transformed into more sophisticated barriers to ever elusive equality”[6] The other danger of participating in the law is the conflict between an eventual social goal and the duty to one’s client.[7] Derrick Bell’s own torturous wrestling with the distance between larger social agenda of civil rights organisations and the communities they represented was one of the reasons that eventually led him to leave the practise of the law.
Believers will then point to umpteen every day verdicts where courts grant liberty or uphold socio-economic rights as a reason to endure in the practise of the law. As a practising criminal defense lawyer, I whole heartedly understand the need to believe in this fallacy. However, it is clear to me that we live in the era of the myth of the constitutional democratic state. To sustain this myth the state must allow its liberal and constitutional scaffolding[8] to function. To enable the ‘public’ to believe that the criminal justice system does not treat minorities unfairly or that there is no racial bias in how persons get sentenced to death, the criminal justice system must grant liberty to a large number of citizens who are disempowered but neither threaten nor serve any purpose to the hegemonies of power. Sometimes this extends even to those cases that lie on the periphery of the categories that threaten or serves the State. By granting these persons liberty the institution of the State suffers no costs but gains legitimacy. It is only in this middle ground that we claim our hard-won victories, seemingly against great odds and the might of the state. In any matter that truly hurts the concentration of power, the law and the judiciary have always deferred to the state.[9]
The question that then arises is- why do we litigate? Supplementing the cushion that Professor West provides, I offer the following reasons:
Firstly, as defence lawyers who are fire-fighting, the urgent need of securing liberty, or preventing an eviction is an easy justification to continue to litigate. We may not be in any position to end the miseries of the wretched of the earth but should individuals in custody or facing an eviction be left to the vagaries of a liberal but apathetic legal system many of them may not see the light of day. They are alone justification enough.
Secondly the ability to expose the mythologies of the fair criminal justice system or the neutrality of the rule of law. We may not win cases or substantially change infrastructure that is rotten from within. However, we can pierce through the scaffolding of the law[10] and expose the ugliness within. Arguments that an individual was denied fair trial, or that courts turn a blind eye to custodial torture and enable systemic impunity are not restricted to court rooms. They can be made in newspapers or journals or pamphlets and even pulpits. There is to my mind an importance and I would argue a need to also make them in court. I have personally represented impoverished families who in the face of great hostility repeatedly refused offers of compensation and spend years in the search for a judicial verdict that their loved ones were murdered in custody. The needs and desires of persons who are oppressed, subjugated and have suffered the violent face of the state are as diverse as they are themselves. For some the prescriptive power of the law cannot be over emphasized.
The third justification to litigate lies in an effort of what we call in India “tying a judge’s hands”. The State may use the apparatus of the law to wreck innumerable injustices. In our role as the fire fighters or what Professor West terms defensive-work we must make that road as difficult as possible. In making the path to injustice thorny and laboured we sometimes force the state to adopt blatantly absurd justifications that exposes its own ugly nature often catalysing responses from the most inactive and seemingly apolitical citizen. The Bombay High Court’s denial of medical bail to 84-year-old Jesuit priest Stan Swamy on account of an absurd standard of bail under anti-terror laws, led to precisely such an out-cry against the use of anti-terror-laws to suppress dissent in India creating, solidarities against state repression in the most unusual quarters. It allows in law what Benjamin Noys described as accelerationism or the persistence of the negative. [11]
While playing this role of ‘tying their hands’ it is also crucial for lawyers to remain alive to fleeting windows of opportunity to dent oppressive facets of the law. These may be transient advancements-within what Professor West calls the liberal paradigm. Yet it is important to push these advancements. They provide an opportunity for a new consciousness to trickle into the institutions that protect power and perhaps over generations become ingrained in political culture. Secondly, they allow for the possibility of individuals within the system to transform and in turn effect whatever limited change they can. For instance, pursuant to the denial of bail, Fr. Stan Swamy died of post-covid complications in custody. The Judge hearing his case felt the responsibility of his death and subsequently in an unprecedented order allowed a 60-years-old terminally ill patient terror accused to be transferred to a hospice despite fierce resistance by the State.
Fourth in representing persons from minority groups and indigent families accused of committing violent crimes, one is also slowly chipping away at a myopic understanding of violence and the cruel processes by which we ‘other’ and monsterise those who are different. Without glossing over or diminishing the responsibility of individual choice, I argue that upper middle-class sensibilities conceive violence in its narrow, singular, and physical form. Yet violence manifests itself in various ways. The violence of poverty, the emotional violence of helplessly watching an alcoholic father and a terminally ill family member die without medication, and the violence of living in perpetual fear of homelessness, arrest, unemployment and starvation are equally real and brutal. Once one is brutalised in this manner, the trauma stays and haunts the mind on a daily basis. It slowly shreds one’s personality of any humane characteristics of compassion or empathy leaving behind only raw nerves. In the absence of help and healing it disfigures the emotional core of one’s mind, proving what Auden says in the poem September 1, 1939, “those to whom evil is done will do evil in return”. There are many who have argued that the war against drugs and the prison industrial complex is a continuation of systemic slavery couched in the language of criminal justice in America. Parallels exist across many countries. These are obvious faults that one must contend with. However, in our struggle and search for a better world we often fail to look beyond the obvious binaries of race or caste and fully comprehend the systemic infrastructure that creates an environment that enables ‘criminal’ pathologies and choices. Representing defendants from these worlds charged with violent offences allows us to understand and give voice to these realities.
While we may take heart in these justifications, the criticism remains, that the defensive work of representation plays no role in envisioning or building a new world. One may then validly ask, where in the daily rigors of running to courts and exposing state violence is there the time to imagine, forget lay the building blocks, of concrete utopias?
Before I begin to answer, it is critical, to acknowledge the privileged location from which I will attempt to answer this. The ability to represent in itself puts us in a position of privilege and power. Many of us come to the law not out of the desperation born of oppression but the guilt of belonging to the class of oppressors, the guilt of our own privilege, and the injustice it wrecks. We come from a theoretical understanding of the injustice done in our name. Our politics is born of books, theory, and morals. As Frances Ellen Wakins Harper once told a room of white suffragettes “You white women here speak of Rights. I speak of Wrongs”. The radical beginning for those of us who are privileged, is the shedding of our trappings of entitlements, seeing the world for what it is, and letting that reality force the direction of both the action and the urgency of effort to be expended. The unique revolutionary potential of this transformation is crucial.
It is through our interactions with the people we represent, their families, letters from prison, and in being their voice that we build not only radical solidarities but begin a real journey of developing a radical political practise and building a blueprint for radical social reorganisation. It is in the worlds we are exposed to or enter, the lives and personalities we encounter, in the long journeys between squalid crime scenes, dilapidated courthouses, and forsaken prisons, in the patience and strength of family members whose struggle puts to shame any effort we think we may have expended on briefs and arguments, it is in this foul rag and bone reality, that the seeds of radical transformation lie. It holds in my opinion the possibility of radical solidarities, equality and transformative friendships that are real, concrete and utopic.
Before I am cut down to size for being overly romantic, I will be quick to warn that in most legal practices I know this remains an aspiration. As Duncan Kennedy[12] so lucidly illustrates the hierarchies of power exist within the legal education and practise as much as anywhere else. The people we represent become clients. We exercise power over our clients, over our colleagues who may be younger or have come to the bar late, or other colleagues who do not participate in what is deemed intellectual legal work. In these and myriad other ways we perpetuate the divisions and evils of the capitalist discriminatory state we claim to resist. Lawyers with the best and most radical intentions, are human and acutely vulnerable to falling prey to their own victories in a courtroom and the praises of numerous grateful families and civil society actors who hail them as champions of human rights and the saviours of the disempowered and disenfranchised. Examples of the phenomenon of the human rights lawyer personality cult exist all around us. A dizzying world of awards, conferences, recognition, and social media which is constantly hailing and congratulation ‘victories’ sustains an economy where civil and human rights lawyers and the important work “they do” over shadow the people and narratives they represent. Power weaves its way in to the mind as insidiously as violence. The more cause lawyers participate in this world, albeit with the noble intent of advocating a cause, or raising funds, the more the power they accumulate and exercise, enabling a world whose centre is the lawyer and not the cause.
Nothing in our reality is absolute. The world and those of us who inhabit it are nuanced complex and contain a million hues. The ills of participating in the law are not absolute reasons to refrain from doing so. They are realties that we must be alive to. In ‘Everbody’s Protest Novel’ Baldwin writes “in overlooking and denying our complexity we are diminished and we will perish…It is only in confronting our own hunger and darkness that we will find ourselves and the power that will free us from ourselves.”[13] Or as the Aeschylus wrote from “pathos to mathos”. In its essence the act of protesting is a piercing interrogation of oneself. Utopias are not born of intent. Nor can vision alone build utopias. They are forged as we have been discussing of solidarities and utopic practises. To truly build a radical praxis and realise utopia we must, especially as resistance lawyers, incessantly and unfailingly interrogate ourselves, our practices and the spaces we create. Alive and cognisant of the limitations of our forms and modes of resistance we must put all our weight into building radical solidarities and a truly egalitarian world.
Notes
[1] It is likely that many of us will be remembered for being boringly moderate
[2] Weber, Max, “Economy and society, part 1 & 2”, ed Günther Roth and Claus Wittich, Berkeley and Los Angeles, California, 1978. See also G. Agamben, State of exception, University of Chicago Press, 2005.
[3] G. Agamben, State of exception, University of Chicago Press, 2005.
[4] Roland Barthes, Mythologies, (1957). See also Michael Tigar, Mythologies of State Power, (2018).
[5] Public Interest Litigation
[6] Derrick Bell, Racism is Here to Stay: Now What?, 35 Howard Law Journal, (1991).
[7] Ibid.
[8] Lokaneeta J, The Truth Machines: Policing, Violence and Scientific Interrogations in India, University of Michigan Press, 2020.
[9] K Balagopal, In Defense of India: Supreme Court and Terrorism, Economic and Political Weekly, 1994, Korematsu v US 323 U.S. 214, McCleskey v. Kemp 481 U.S. 279 (1987).
[10] Lokaneeta J, The Truth Machines: Policing, Violence and Scientific Interrogations in India, University of Michigan Press, 2020.
[11] Benjamin Noys, Persistence of the Negative, 2010.
[12] Duncan Kennedy, Legal Education and the Reproduction of Hierarchy, 1982
[13] James Baldwin, Everybody’s Protest Novel, 1949.