In the Absence of the Rule of Law: Everyday Lawyering, Dignity and Resistance in Myanmar’s ‘Disciplined Democracy’
| Author | Alex Batesmith,Jake Stevens |
| DOI | 10.1177/0964663918807739 |
| Date | 01 October 2019 |
| Published date | 01 October 2019 |
| Subject Matter | Articles |
Article
In the Absence of the Rule
of Law: Everyday
Lawyering, Dignity
and Resistance
in Myanmar’s
‘Disciplined Democracy’
Alex Batesmith
University of Liverpool, UK
Jake Stevens
USA
Abstract
This article explores how ‘everyday’ lawyers undertaking routine criminal defence cases
navigate an authoritarian legal system. Based on original fieldwork in the ‘disciplined
democracy’ of Myanmar, the article examines how hegemonic state power and a func-
tional absence of the rule of law have created a culture of passivity among ordinary
practitioners. ‘Everyday’ lawyers are nevertheless able to uphold their clients’ dignity by
practical and material support for the individual human experience – and in so doing,
subtly resist, evade or disrupt state power. The article draws upon the literature on the
sociology of lawyering and resistance, arguing for a multilayered understanding of dignity
going beyond lawyers’ contributions to their clients’ legal autonomy. Focusing on dignity
provides an alternative perspective to the otherwise often all-consuming rule of law
discourse. In authoritarian legal systems, enhancing their clients’ dignity beyond legal
autonomy may be the only meaningful contribution that ‘everyday’ lawyers can make.
Corresponding author:
Alex Batesmith, University of Liverpool, Eleanor Rathbone Building, Bedford Street South, Liverpool L69 7ZA,
UK.
Email: A.Batesmith@liverpool.ac.uk
Social & Legal Studies
2019, Vol. 28(5) 573–599
ªThe Author(s) 2018
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DOI: 10.1177/0964663918807739
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Keywords
Dignity, everyday resistance, hybrid and authoritarian regimes, law and development,
lawyers and lawyering, Myanmar/Burma, rule of law, sociology of lawyering
Introduction
Although U Ko Ni was the one who physically died, the reality is that this murder represents
the death of the rule of law.
U Robert San Aung, activist lawyer (Lwin and Naing, 2017)
1
On 29 January 2017, U Ko Ni was shot dead as he waited for a taxi outside Yangon
International Airport in Myanmar.
2
A prominent constitutional lawyer, acclaimed refor-
mer and senior legal adviser to Daw Aung San Suu Kyi’s
3
National League for Democ-
racy (‘NLD’), he was working on creative legal strategies to circumvent the
constitutionally-enshrined political power still held by the Myanmar military (Brennan,
2017; Crouch, 2017d; Lintner, 2017).
The murder of such a skilled legal activist who was deeply immersed in using legal
strategies to embed the rule of law speaks directly to the dangers of lawyering in ‘hybrid’
regimes (Bogaards, 2009; Gilbert and Mohseni, 2011; Levitsky and Way, 2010), those
countries in which elements of authoritarianism and democracy commingle (Collier and
Levitsky, 1997; Gilbert and Mohseni, 2011). Yet even before Ko Ni’s assassination,
there was an almost obsessive focus on the rule of law in Myanmar, and its various
meanings and prospects. From Cheesman’s comprehensive dissection of the inherently
contested nature of the concept and its relationship to democracy (2009, 2014, 2015a,
2015b, 2016, 2017), to Prasse-Freeman’s discussion of the way in which it relates to
broader concepts of informal social justice (Prasse-Freeman, 2014, 2015), the rule of law
in Myanmar has been a popular subject for academic analysis. Develo pment practi-
tioners, domestic and international policymakers and civil society organizations alike
have also heralded the rule of law as the key to Myanmar’s future prosperity and social
harmony (Crouch, 2017b; UNDP, 2016; USAID, 2017; Xinhua, 2018).
From another perspective, this preoccupation with the rule of law is somewhat puz-
zling, given that Myanmar retains many of the hallmarks of despotic governance (chiefly
linked to a lack of restraint on arbitrary state power) in a way that makes the rule of law
‘practically incompatible’ with such regimes (Luban, 2010: 10). Whether conceptualized
as a formalist, minimum system of publicly and prospectively promulgated rules apply-
ing to all, or as a fully articulated substantive political morality with a rich normative
content (Carothers, 2010; Peerenboom, 2004; Tamanaha, 2004), restraint of arbitrary
state power is an essential constituent of the rule of law (Krygier, 2011, 2016). Thus, in
hybrid political systems where legal norms (such as the constitution) and institutions
(such as courts, anti-corruption commissions) are in effect co-opted by the executive, the
rule of law is an ‘empty signifier’ (Laclau, 2005 as cited by Prasse-Freeman, 2015):
either functionally absent, used to justify autocratic tendencies, or both.
574 Social & Legal Studies 28(5)
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