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.