On Legal Advocacy and Legitimation of Control
From time to time, the Palestine Center distributes articles it believes will enhance understanding of the Palestinian political reality. The following article by Hassan Jabareen was published by Jadal Magazine on 11 June 2012."On Legal Advocacy and Legitimation of Control"
By Hassan Jabareen
When he was imprisoned, Nelson Mandela utilized his background as a lawyer to begin filing suits on behalf of other prisoners to improve their situation. Some prisoners objected: they viewed Mandela’s action as cooperating with the regime and legitimizing its control over the prisoners. Mandela rejected these claims, contending that his suits were an integral part of the prisoners’ political struggle. The question of whether legal advocacy during the era of apartheid granted legitimacy to the regime was relevant, since lawyers were making extensive use of the legal tools available and succeeding to an extent. Stephen Ellmann closely investigated this question, concluding that those opposed to apartheid distinguished between the courts and the apartheid government, viewing the government suspiciously and battling it continuously. It should be noted that as president, Mandela appointed Richard Goldstone, a judge under the apartheid regime, to the Constitutional Court, and Arthur Chaskalson, a leading human rights lawyer, as president of the Court.
Legal advocacy to advance the social interests and protect the rights of individuals will always exist when and where people engage in politics. It cannot be stopped so long as people are doing politics. Richard Abel aptly terms such legal advocacy “politics by other means”. In general, the practice of law is the most political of all the free professions.
By its very definition, politics involves attempts to preserve, change, or substitute the existing balance of power, and legal advocacy operates specifically to influence the balance of power between the state and its citizens. Such methods were even used during the period of slavery in the United States. When a slave filed suit against his master, the Supreme Court reached one of its most historic and infamous decisions, ruling that slaves were not citizens under the US Constitution, so were not entitled to file suit to attain the rights and immunities that the Constitution guaranteed to citizens. 
Lawyers for detainees at Guantanamo, their clients kept in almost perfect isolation, filed actions contending that the US Constitution applied in the detainees’ cases, and as such they had the right to file suit in American courts. These claims intensified the struggle to protect the rights of the detainees.
Palestinians began their use of court actions with the onset of mass deportations following the foundation in 1948 of the state of Israel: a political activist from Jaffa filed a petition within the first week of the establishment of the Supreme Court. His petition raised the first constitutional question regarding the adoption of the Emergency Regulations of the former British Mandate. 
We have also seen that the use of legal tools increases when civil society is better organized. The number of suits filed by blacks in the United States increased during the civil rights movement in the 1950s and 1960s; likewise, in South Africa, the number of suits contesting apartheid reached a peak in the 1980s and remained high until the apartheid government was abolished in 1994. At the time of the outbreak of the first intifada in 1987, forty percent of petitions to the High Court of Justice were filed by Palestinians.
These attempts to effect change through the courts do not necessarily mean that the victims and litigants believed that the regimes were neutral, fair, or just. The decision of Palestinian lawyers to boycott Israeli military courts, made immediately following the Israeli occupation in 1967, has never been cancelled, but neither has it been put into practice, and Palestinian lawyers continue to represent their clients in the military courts. As noted, such representation does not result from trust in the courts; rather, it is due to circumstances, in which practical considerations prevail over value judgments.
Politics surfaces in such situations. According to the previously mentioned research, by going to court, the victims acted out of considerations of profit and loss, utilizing any venue available to them and hoping the court would grant them relief. In his research on actions filed in Israeli courts in occupation-related matters, George Bisharat found that “profitability” indeed justified bringing forward such actions.
Given this point, it is simplistic to argue that actions should not be filed in courts to avoid legitimizing repressive regimes, though debate on the issue is now, and will remain, important. Such action professes to be political, but it simultaneously assumes the lack of politics. Based on the above experiences in Israel and elsewhere, we find that an improbable situation arises, whereby the many practical considerations of the victims and the diversity of their stories lead to an identical result: victims forgo filing individual court actions with the guaranty that all the lawyers hold comparable political beliefs and commitments and so will act to advance the common political objectives.
Still, we may learn from the historical record that filing of legal actions has aided in legitimizing the regime in its own eyes and in the eyes of its supporters. The legal system is part of the regime and owes its existence to the state, not the other way around. This does not mean that the courts are simply rubber stamps. In every kind of regime, the two operate vis-ŕ-vis each other, at times contradictorily and at times harmoniously.
An example is the ruling of the South African court that nullified the state’s prohibition of the unification of black families, a decision that significantly affected South Africa’s apartheid policy. The regime used the ruling to support its claim that South Africa was “the only democracy in Africa,” showing that even in its opposition to the government, the court served to strengthen the image of state. In this way, the judiciary played a prominent role in apartheid propaganda, and the state and its proponents paraded it before the world to show that the South African regime was faithful to the rule of law.
It is important to note that the question of legitimation is pivotal primarily for the victims of the oppression: to them, the regime’s perception of the question is irrelevant. The danger inherent in such a political struggle is that following success in court, victims will be convinced that the oppressive and discriminatory regime is legitimate. Belief of this kind harms the local and international battle to achieve radical change.
However, this is often not the case. Litigious success against the South African apartheid regime did not grant the system legitimacy in the eyes of the victims or in the eyes of the international community. Likewise, legal advocacy for the Israeli occupation has not led Palestinians, or people around the world, to consider the occupation lawful. The successes achieved now and again by Palestinians in Israel do not legitimate—in the minds of the political leadership or in the minds of Palestinian civil society in Israel—the state’s ethnically discriminatory constitutional structure. The political platforms of Arab parties in Israel and the documents delineating the vision of Arabs in the country are clear evidence of the state’s failure to attain such legitimacy.
Law in capitalist countries can create the illusion that rights discourse is based on the principle of discrimination as forbidden, even while the system loosens restraints to advance free-market policy. In this way, law manages to present itself as neutral, and a discourse of liberal rights suits the struggle. In such a scenario, the people do not have to organize to effect radical change. Racially or ethnically oppressive regimes do not hold the potential for this level of sophistication. Such regimes’ rights discourse is clearly discriminatory and irreconcilable with basic norms of international law, so this discourse cannot form a basis or serve as an outline for agreement. Thus, the claim that legal advocacy in oppressive regimes legitimates the oppression in the eyes of the victims or the international community exaggerates the force of persuasion of these regimes and attributes more weight to the legal profession than it actually carries.
In any event, legal advocacy is very important for the poor and for victims of racial discrimination. It often manages to intensify the political positions of these groups. This intensification does not depend solely on success in court, since a loss, too, can expose the oppression and the discrimination. On the other hand, legal advocacy does not topple regimes or bring about radical, revolutionary change, because the legal profession inherently relies on rules and norms that are set by the regime itself. However, legal advocacy is not limited only to these rules, and international law remains a conduit to the opportunity to be heard by international and foreign courts.
Apartheid did not fall due to legal advocacy, but legal advocacy doubtlessly helped strengthen civil society. Regime change there resulted from a persistent popular struggle carried out in partnership with civil-society organizations and with the support of the international community.
The views expressed in this article are those of the author and do not necessarily reflect those of The Jerusalem Fund.
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