Boycott, Resistance and the Law: Cause Lawyering in Conflict and Authoritarianism
| Published date | 01 January 2022 |
| Author | Kieran McEvoy,Anna Bryson |
| Date | 01 January 2022 |
| DOI | http://doi.org/10.1111/1468-2230.12671 |
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Modern Law Review
DOI:10.1111/1468-2230.12671
Boycott,Resistance and the Law:Cause Lawyering in
Conict and Authoritarianism
Professor Kieran McEvoy∗and Dr Anna Bryson∗
This article examines the role of cause lawyers in conicted or authoritarian contexts where the
chances of legal victory are often minimal. Drawing upon the literature on resistance, perfor-
mance, memory studies,legal consciousness and the sociology of lawyers, the paper examines
how cause lawyers challenge and subvert power.The paper rst explores the tactics and strate-
gies of cause lawyers who boycott legal proceedings and the relationship between such boycotts
and broader political struggles, legitimacy and law.It then examines why and how cause lawyers
engage in fairly hopeless legal struggles as acts of instrumental resistance (the ‘sand in the cogs’),
transforming courts into sites of symbolic resistance, and using law as a form of memory work.
The paper argues that boycott of and resistance through the courts can counter the use of law
as an instrument of wickedness and a tool of denial and preserves a ‘stubborn optimism’ in the
rule of law.
Keywords: CauseLawyers,Boycott, Legitimacy, Resistance, Ruleof Law, LegalConsciousness
INTRODUCTION
One of the basic precepts for lawyers working in any democratic legal system
is the notion that, with the application of due legal skill and ability and a fair
judge (or jury), there is at least some chance of a just outcome.1While lawyers
are often critical of the structural failings of the legal edice – arguing that
particularlaws, judges, political orpolicyinitiatives, types oflegalproceedings,
and indeed core elements of a given legal culture are fundamentally unfair or
∗The authors are respectively Professor of Law and Transitional Justice and Senior Lecturer in Law,
School ofLaw,Queen’s UniversityBelfastandbothareFellows attheSenatorGeorge J. Mitchell In-
stitute for Global Peace,Justice and Security.This paper is drawn from an ESRC funded project titled
Lawyers inConict andTransition,ES/J009849/1. Previousversionsof thispaperwere presentedata
QUB sta seminar in November2018 and at the Law and Society Annual Conference in Washington
DC in June 2019.We would like to acknowledge comments and feedback fromour fr iend and part-
ner onthebroader project, LouiseMallinder. Inaddition, RonDudai, Anne Mar ieMcAlinden, Chris
McCrudden, Gordon Anthony, Robin Hickey,ColinHarvey, Hannah Quirk, RichardSparks, Alex
Batesmith and John Morison, and the anonymous referees all provided useful feedback. Thanks also
to Mike Posner and Hardy Vieuw for tracking downelusive Human Rights Watch historical papers
on boycott in Israel/Palestine.We would also like to thank Alyssa Bernstein,Salwa El Gantri, Emma
Catteral and Irene Nasser for their valuable research assistance and of course all of our interviewees
for sharing their stories with us. Remaining errors are our responsibility.
[Correction added on 17 September 2021,after rst online publication: On page 12,second paragraph,
3rd line,the text ‘petitions that’ has been changed to ‘petitions against policies that’]
1L. Brandeis, ‘TheOppor tunity intheLaw’ (1905)3 Commonwealth Law Review 22.
© 2021The Authors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2022) 85(1) MLR 69–104
Thisis an open access ar ticle under the terms of the CreativeCommons Attr ibution License,which permits use,distr ibution and reproduction
in any medium, providedthe orig inal workis properlycited.
Boycott,Resistance and the Law
unjust – this rarely leads them to conclude that they should refuse to engage.
It is true that in the wake of 9/11 the operation of military tribunals such as
Guantanamo as well as national security ‘closed material proceedings’ provoked
some reective soul-searching amongst lawyers in the US,UK and elsewhere.2
Signicant work has also been done on the role of the judiciary in unfair or
unjust legal proceedings.3However,there has been comparatively little analysis
of the circumstances in which lawyers either boycott legal settings or otherwise
subvert them as part of a broader political and ideological strategy.This article
seeks to address that gap by focusing on the work of cause lawyers across a range
of conicted or authoritarian contexts.
For a variety of reasons,considerations of boycott,legitimation or resis-
tance were front and centre of the contexts we examined.First, this paper
emerges from a comparative study of lawyers in six sites (Cambodia, Chile,
Israel/Palestine,Tunisia and South Africa) – all of which had experienced (or
were still experiencing) political violence,state authoritarianism or both.4Sec-
ond, most of the cause lawyers we interviewed saw their legal work as some
form of political or moral activism rather than simply providing a technical,
professional service.All were highly conscious of the risks posed by partici-
pation in legal proceedings which had,at the very least, uctuating levels of
legitimacy.By examining both boycott and styles of resistant engagement in
what were often hopeless legal proceedings we hope to better understand the
role that law plays,not only as an instrument of struggle,but also as a resource
for envisioning a better society.
The structure of the paper is as follows.After a brief overview of our re-
search methodology,we highlight relevant themes from the cause lawyering
literature.We then introduce the notion of boycott and the ways in which
it has featured in the legal contexts we researched.In particular,we examine
the practical, moral and political reasoning invoked by cause lawyers who de-
cided to boycott legal proceedings.These include:the degree of organisation
and commitment on the part of cause lawyers;the extent to which the system
‘needs’ the engagement of lawyers;relations between lawyers and oppositional
forces;the role of external variables such as international power relations and
2See further M. Cheh, ‘Should Lawyers Participate in Rigged Systems? – The Case of the Mil-
itary Commissions’ (2005)1Journal of National Security Law & Policy 375; A. Lahav, ‘Portraits
of Resistance: Lawyer Responsesto UnjustProceedings’ (2010) 57UCLA Law Review 725; D.
Prabhat ‘After9/11: GuatánamoandtheMobilization ofLawyers’ (2011)54Studies in Law
and Politics 213; F. Ní Aoláinand O. Gross (eds), GuantánamoandBeyond: Exceptional Courtsand
Military Commissions in Comparative Perspective (Cambridge: CUP, 2013).
3D.Dyzenhaus, Judging the Judges (Oxford: Hart, 2003); J. Mor ison etal(eds), Judges, Human Rights
and Transition (Oxford:OUP,2007); L. Hilbink, Judges Beyond Politics in Democracy and Dictatorship:
Lessons from Chile (Cambridge: CUP, 2007); T. Ginsburg and T. Moustafa (eds), Rule by Law:
The Politics of Courts in Authoritarian Regimes (Cambridge: CUP,2008); E. A. González-Ocantos,
Shifting Legal Visions: Judicial Change and Human Rights Trials in Latin America (Cambridge: CUP,
2016).
4In this article ‘Palestine’ refers to the West Bank and Gaza Strip which were occupied by Israel
in 1967. Some areas of the West Bank are nowunder par tial control of the Palestinian National
Authority (PNA), while the Gaza Strip is controlled by Hamas.It was not possible to conduct
eldwork in Gaza for logistical and security reasons. The Palestinian lawyers we interviewed
practiced law in the Israeli civilian or military courts and/or courts under PNA jurisdiction.
70 © 2021The Authors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2022) 85(1) MLR 69–104
Kieran McEvoy and Anna Bryson
timing; the perceived legitimacy of lawyers’actions;and the need for an alter-
native legal vision.In the following section,we then look more closely at the
resistant strategies and tactics adopted by cause lawyers who engage in unfair
legal proceedings. Finally, we explore thedialecticbetweenboycott andresis-
tant engagement and argue that, at the core of both strategies, is a ‘stubborn
commitment’ to law as a viable alternative to violence and authoritarianism.
DOING COMPARATIVE RESEARCH ON CAUSE LAWYERS
As noted above, this paper emerges froma comparative study in six jurisdictions.
These were chosen from a long list of over a dozen with a view to facilitating
‘structured, focused comparisons’and enabling us to explore a range of theo-
retical themes.5The project also built on previous work by one of the authors
in Northern Ireland.6The rationaleforselectionincludedcriteriasuchas: (a)
countries with a history of violence, authoritarianism or which are now ‘in
transition’; (b) jurisdictions from the principal ‘legal families’(ie the Common
Law tradition, theCivilLawtradition, Islamictradition, aswell asindigenous
Asian and African legal traditions);7(c) jurisdictions with a tradition of cause
lawyering (leftorrightleaning); and (d)forthe‘transitional’ sites, jurisdictions
with diverse transitional justice mechanisms.
Before eldwork commenced,we commissioned an extensive interdisci-
plinary literature review on cause lawyers which drew upon scholarship from
law, sociology, political science, historyandotherdisciplines. Localresearchers
also completed a bespoke historical report and attended to in-eld logistics. A
research instrument (or interview schedule) drew upon the broader theoretical
themes identied in the literature review and we made appropriate adaptations
for each site.A total of 131 interviews were conducted, withanaverage of 22 in-
terviews per jurisdiction. Eighty of the interviewees were lawyers,10 were legal
academics or judges (including former cause lawyers) and 20 were human rights
or NGO activists.The remainder included government lawyers (discussed fur-
ther below)politicians, andocials, journalists, civilsocietyactorsand afew
former political prisoners. Forty of the interviewees were female,and the rest
were male.Purposeful sampling identied a range of lawyers based on criteria
including professionalseniority,exper ience ofpolitically contentiouscases, and
relations with a diversity of political and civil society organisations.8Almost all
interviews were recordedand transcr ibed,with interviewees specifying whether
5A. George, ‘CaseStudiesandTheoryDevelopment: TheMethodofStructured, FocusedCom-
parison’ inD. Caldwell (ed), Alexander L. George:A Pioneer in Political and Social Sciences (Cham:
Springer, 2019) 191.
6K. McEvoy ‘Law Struggle and Political Transformation.’(2000) 27 JLS 542; K. McEvoy ‘What
did the Lawyers do During the War?’(2011) 74 MLR 350.
7H.P.Glenn, ‘Comparative LegalFamiliesand ComparativeLegalTraditions’inR. Zimmermann
and M. Reimann(eds), Oxford Handbook of Comparative Law (Oxford: OUP,2006).
8Purposeful or pur posive sampling is premised on the assumption that categories of interviewees
may haveunique, varied or important perspectives on particular themes and samples accordingly.
For analogousmethodologiessee S. O’Donovan-Polten,The Scales of Success:Constructions of Life-
Career Success of Eminent Men and Women Lawyers (Toronto:University of Toronto Press, 2001).
© 2021The Authors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2022) 85(1) MLR 69–10471
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