BY GILL H BOEHRINGER
Division of Humanities, Macquarie University
Sydney, Australia
Contributed to Bulatlat.com
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.
