Law, Struggle, and Political Transformation in Northern Ireland

Date01 December 2000
Published date01 December 2000
ISSN: 0263-323X, pp. 542–71
Law, Struggle, and Political Transformation in Northern
Kieran McEvoy*
This article analyses the role of law as an element of the Republican
Movement’s violent and political struggle during the Northern Ireland
conflict. The trials and legal hearings of paramilitary defendants, the
use of judicial reviews in the prisons, and the use of law in the political
arena are chosen as three interconnected sites which highlight the
complex interaction between law and other forms of struggle. The
author argues that these three sites illustrate a number of themes in
understanding the role of law in processes of struggle and political
transformation. These include: law as a series of dialogical processes
both inside and outside a political movement; law as an instrumental
process of struggle designed to materially and symbolically ‘resist’;
and the constitutive effects of legal struggle upon a social and political
movement. The article concludes with a discussion as to whether or not
Republicans’ emphasis upon ‘rights and equality’ and an end to armed
struggle represents a ‘sell out’ of traditional Republican objectives.
The notion of law providing useful insights into the ideology, strategy, and
practices of a state during violent political or civil unrest is well established.
ßBlackwell Publishers Ltd 2000, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA
*Institute of Criminology and Criminal Justice, The Queen’s University,
Belfast BT7 1NN, Northern Ireland
Earlier versions of this paper were presented at the Socio-Legal Studies Association
Conference in Manchester in April 1998 and the Law and Society Association
Conference in Aspen, Colorado in June 1998 and I am grateful for insightful comments
received at both meetings. I am also grateful to Colm Campbell and Richard English for
historical pointers and to the Northern Ireland Office for judicial review data. In addition,
Gordon Anthony, Tony Bottoms, Stan Cohen, Brigid Hadfield, Colin Harvey, John
Jackson, Steve Martin, Declan Moen, John Morison, and Richard Sparks have offered
advice on earlier incarnations. Finally I would like to thank the anonymous referees of the
first draft and those who were interviewed for the research from which this article is
States in which the legal system and its legitimacy are contested have long
been used as case studies to illuminate broader theoretical issues.
understandably focus on the capacity of what Dyzenhaus has termed ‘wicked
legal systems’ to legitimate repression and thwart progressive social and
political movements. Legal repression by formal rationality serves to
depoliticize collective violence, undermine the solidarity of resistant actors,
and legitimate state violence.
Within this genre, there is considerable legal
scholarship on Northern Ireland from a human rights perspective criticizing
state activities.
However, unlike elsewhere, little has been written on the
attitudes of the non-state protagonists towards law.
This article focuses in particular on Republicans’ use of legal struggle in
Northern Ireland over the past thirty years.
Three key settings are analysed.
It begins by examining the attitudes of IRA defendants towards law at trials,
extradition hearings, and before international human rights forums. It then
considers judicial review as a strategy of resistance in the prisons. Finally the
use of law in the political arena is examined as Sinn Fein emerged as a
political force in the 1980s. By charting the varying attitudes towards law by
Irish Republicans in these illustrative settings, the article explores the inter-
related themes of (i) law and struggle as processes of dialogue or
communication; (ii) law as instrumental struggle; and (iii) the impact of
legal struggle in shaping a political and paramilitary movement.
1 Hart and Fuller’s dispute regarding Nazi Germany and legal positivism, Dyzenaus
and Abel’s discussion on law in Apartheid South Africa, Cover’s consideration of
American slavery, and Harel’s reflections on the Israeli judiciary are all examples of
scholars seeking to better understand the operation of law more generally through
the elucidation of particular extreme case studies. See H. Hart, ‘Positivism and the
Separation of Law and Morals’, reprinted in Hart, Essays in Jurisprudence and
Philosophy (1983); L. Fuller, ‘Positivism and Fidelity to Law – A Reply to Professor
Hart’ (1958) 71 Harvard Law Rev. 630–72; R. Cover, Justice Accused (1975); D.
Dyzenaus, Hard Cases in Wicked Legal Systems: South African Law in the
Perspective of Legal Philosophy (1991); R. Abel, Politics by Other Means: Law in
the Struggle Against Apartheid 1980–1994 (1995); A. Harel, ‘The Rule of Law and
Judicial Review: Reflections on the Israeli Constitutional Revolution’ in Recrafting
the Rule of Law: The Limits of Legal Order, ed. D. Dyzenhaus (1999).
2 I. Balbus, The Dialectic of Legal Repression: Black Rebels Before the American
Courts (1977).
3 For a range of illustrative examples covering differing areas of human rights abuses,
see K. Boyle, T. Hadden, and P. Hillyard, Ten Years on in Northern Ireland: The
Legal Control of Political Violence (1980); A. Jennings (ed.), Justice Under Fire:
The Abuse of Civil Liberties in Northern Ireland (1990, 2nd edn.); S. Greer,
Supergrasses: A Study in Anti-terrorist Law Enforcement in Northern Ireland
(1995); M. O’Rawe and L. Moore, Human Rights on Duty: Principles for Better
Policing, International Lessons for Northern Ireland (1997).
4 Fieldwork for the research from which this article is drawn included over fifty
interviews with former paramilitary prisoners, politicians, activists, prison staff,
lawyers, and human rights activists. For an analysis of the attitudes of Loyalist
activists towards law, see K. McEvoy, Resistance Management and Release:
Paramilitary Imprisonment in Northern Ireland (2001, forthcoming).
ßBlackwell Publishers Ltd 2000

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