Political uses of law

From the Bobigny trials to the Affair of the Century, can law be an effective political instrument for social struggles? Contrary to the image of a fundamentally conservative law, sociologist L. Israël looks back at the strategic uses of law by the French left after 1968.

For several years, Liora Israël, director of studies at the School for Advanced Studies in the Social Sciences and sociologist of law and justice, has been conducting work on the strategic and political uses of law. In The Weapon of Lawfirst published in 2009, the author explained how law could be one of the tools available to those who intend to resolve an injustice. For example, the challenge to racial discrimination in the United States, the defense of Palestinians against the Israeli occupation, the campaigns for environmental protection in Europe since, in particular, the cases Urgenda In the Netherlands, where struggles over abortion rights take place at least partly in judicial arenas. To the left of the right completes this synthesis by analyzing, in detail, the mobilizations of law by left-wing political movements between 1968 and 1981. By means of thematic studies covering different groups of jurists – students, researchers, lawyers, magistrates, the GISTIetc. –, the author studies the uses of law to defend the right to abortion, the rights of foreigners or to ensure the defense of left-wing activists. She thus succeeds in showing the emergence of a particular conception of law and a reflection on the professional practices of lawyers during this pivotal period for the French left.

A particular conception of law

L. Israël is interested in what she calls “the left of the law”, that is to say “lawyers and non-lawyers claiming to be left or far left” (p. 19) who contested the conservative dimension of the law in order to make it the vector “of openly progressive, even radical causes” (p. 20). This definition is rather vague and largely negative. For the most part, left-wing lawyers seem to be those who did not recognize themselves in the dominant values ​​of their professional order, without this being enough to identify a homogeneous or even clearly defined group. L. Israël’s studies focus rather on a constellation of more or less linked individuals and movements. For these people and groups, “the law (is not) only the language of the State or of the dominant: it can be spoken by others and force those who claim to be its guarantors to respond to it” (p. 25). Law can become a vehicle for the denunciation and correction of injustices. In particular, because judicial institutions are required to “hear all complaints and give reasons for their decisions,” they are seen as a potentially crucial site of political struggle.

The conception of law of left-wing lawyers between 1968 and 1981 was not, however, homogeneous. At least two relationships to law and the judicial system coexisted within these groups. In the first perspective, the most radical, law and especially the judicial system were perceived only as a ” decorum » (p. 25) which could be instrumentalized to make it a scene of political denunciation. The law remained a tool at the service of the interests of the dominant classes, but whose principles of coherence, equality or publicity could be diverted. This strategy finds its origin in the Letter in Defense of Lenin, written at the end of the 1920s by Marcel Willard. This communist lawyer saw in the court, particularly criminal, “a political arena” allowing “the exploitation of all the means of expression offered by the guarantees associated with the rights of the defense” (p. 49). The “defense of rupture” used by Jacques Vergès and theorized in his work Judicial strategy in 1968 is the best-known expression. J. Vergès believed that the trial was only a “possible space for questioning and raising awareness (…) of public opinion about the political cause” (p. 46). During the trial, the defense had to use all the weapons at its disposal, including taking the risk of worsening the sentences handed down, to highlight the political cause underlying the offense committed. This was, for example, the strategy he adopted to defend Djamila Bouhired, who had planted bombs in Algeria. The lawyer, through his multiple interventions calling into question the very legitimacy of the court, managed to make the trial impossible and to give it considerable resonance, transforming it into a symbol of the cause of the Algerian National Liberation Front. However, this strategy also precipitated the death sentence of the accused – who was pardoned following the Evian Accords of 1962 – and had no impact on positive law. Because positive law and the judicial system are perceived as illegitimate, it is useless to try to correct it or to expect a favorable solution. This radical method was emulated in the period studied by L. Israel, for example during the trial of Alain Geismar before the Security Court in 1970 and 1971. This leader of the Maoist left, prosecuted for the publication of the Cause of the peopleorganized his trial to publicize it and even had the minutes published (p. 258-260).

Less subversive, but more widespread, the second perspective implied an adherence to the fundamental principles of the legal system that could protect groups that were currently excluded or victims of injustice. Law and the judicial system were analyzed as a “space within which social conflicts can be refracted, or even resolved” (p. 26) by respecting the demands of justice. For example, the young ENA graduates at the origin of the Information and Support Group for Immigrants (GISTI) wanted to enable immigrant workers to assert their rights (p. 214 et seq.). The aim was not to radically challenge the State’s migration policy, but to ensure the transparency of this policy by requiring the authorities to publish the circulars on the basis of which administrative decisions were adopted. This publicity was to enable immigrant workers to assert their rights, to challenge illegal decisions and possibly to obtain corrections when the decisions taken were contrary to the rights recognized by the legal system. In other words, the aim of the GISTI was to put an end to the lawless zone in which foreigners found themselves, the legal framework being supposed to allow effective protection of their rights.

Likewise, the strategy developed by the defense lawyers during the Bobigny trials of 1972, studied at length by L. Israel (p. 261-282), illustrates this relationship with the law. These trials of a minor, accused of having aborted after a rape, and of the four women who helped her, were used as a platform by the members of the association Choosing the cause of womenfounded by Simone de Beauvoir and Gisèle Halimi, to defend the right to abortion. G. Halimi, who was one of the defense lawyers, used all the weapons of criminal procedure to publicly challenge the criminalization of abortion. However, the purpose of the trial was above all to obtain an acquittal of the accused from the court and a change in the law relating to abortion by highlighting its injustices and inconsistencies. From the defense’s point of view, the law and the judicial system could effectively guarantee women’s rights. The difference is clear with the strategy of the rupture defense: the law is perceived as a legitimate and effective weapon to correct injustices and not as a simple vector for challenging public opinion.

Rethinking professional practices

In rethinking their relationship to the law, these left-wing jurists could not be satisfied with existing professional practices that they perceived as opposed to their commitments. From then on, they tried to challenge them. Thus, several initiatives were launched in order to “desacralize” the legal professions. In their vocabulary, it was a question of breaking with a bourgeois conception of these professions. For example, the creation of the Syndicat de la magistrature and the Syndicat des avocats de France stood out within the legal professions, in particular because of the use of the term “Syndicat” (p. 111). This choice was intended to emphasize the quality of workers of law – and not of notables –, magistrates and lawyers. The creation of the Judicial Action Movement, an interprofessional movement which attempted to place magistrates, lawyers and social workers on the same level (p. 129), was based on an identical dynamic.

Similarly, several projects were created to provide access to these legal professions for disadvantaged people. In addition to the creation of multiple legal offices by various associations, the most significant experiment in this regard was the Ornano firm. Taking advantage of legislative developments that allowed the creation of business firms bringing together several lawyers, Henri Leclerc and Georges Pinet created a firm in 1972 whose objective was to give the poorest people access to high-level legal defense, through a reflection on the pricing and organization of lawyers’ work (pp. 145-157). The law boutiques, in which free legal advice could be provided, also had the function of allowing more universal access to the law (p. 159).

L. Israel notes, however, that this inventiveness has encountered obstacles. Collective firms modeled on Ornano’s firm imposed an “all-consuming professional investment” (p. 156) on its members, partly depriving them of family life and pushing many lawyers to prematurely end this experience. Likewise, the legal offices of the associations have had questionable effectiveness, the activity of the GISTI having certainly allowed improvements in immigration policies without, however, substantially calling them into question. In general, the reflections and developments noted by L. Israël have had little posterity after 1981. To the left of the right also leaves open the possibility of continuing the investigation into the way in which the relationship with the law evolved among left-wing jurists after this date.

Furthermore, over the period already studied, one question remains unresolved. By analyzing the relationship between the left and the right, the author seems to believe that there would be a “(specific) articulation between progressive causes and uses of the law”. This specificity could be questioned and clarified by comparing it to the political uses of law on the other side of the political spectrum. In France, it would be interesting to analyze the association’s multiple appeals Promote or the interventions of the European Center for Law and Justice before the European Court of Human Rights. The first, aimed in particular at calling into question the visa for the exploitation of films deemed pornographic, and the second, relating to the presence of crucifixes in classrooms, to the opening of medically assisted procreation to homosexual couples or to the condemnation of artists whose works are deemed blasphemous, are based on strategies similar in certain respects to those employed by the left-wing jurists studied by L. Israel. The analysis of this proximity, but also of the differences between the two groups – the absence of practice aimed at allowing a democratization of access to the law, for example – would offer a useful complement to the already very rich developments of this work.