What Did the Lawyers Do During the ‘War’? Neutrality, Conflict and the Culture of Quietism
| DOI | http://doi.org/10.1111/j.1468-2230.2011.00851.x |
| Date | 01 May 2011 |
| Published date | 01 May 2011 |
| Author | Kieran McEvoy |
WhatDidtheLawyersDoDuringthe‘War’?Neutrality,
Con£ict and the Culture of Quietism
Kieran McEvoy
n
Using Northern Ireland as a case study, this paper explores how lawyers responded to the chal-
lenges of entrenched discrimination, sustained political violence and an emerging peace process.
Drawing upon the literature of the sociology of lawyering, it examines whether lawyers can or
should be more than‘paidtechnicia ns’in such circumstances. It focuses in particular upon a num-
ber of ‘criticaljunctures’ in the legal history of the jurisdiction and uncoupleskey elements of the
local legal culture which contributed to an ethos of quietism.The paper argues that the version of
legal professionalism that emerged in Northern Ireland was contingent and socially constructed
and, with notable exceptions, obfuscated a collective failure of moral courage. It concludes that
facing the truth concerning past silence is fundamental to a properly embedded rule of lawand a
more grounded notion of whatit means to be a lawyer in a con£ict.
INTRODUCTION
In his analysis of the role of law in the South African con£ict and transition,
Richard Abel quipped that one of the reasons why it was so well studied was
that it was the ¢rst such struggle to ‘happen in English’.
1
Northern Ireland quali-
¢ed for a similarly close analysis. For legal academics, the jurisdiction has o¡ered
a particularly rich site for theoretical and doctrinal analysis.
2
However,
whilst the centrality of law to both the con£ict and peace process have been well
n
Professor of Law andTransitional Justice, Law School, Queens University Belfast. I received very
helpful comments from two anonymous referees, as well as academic colleagues after presentations
of di¡erent versions of the paper atQuee n’sUniversity Belfast, the University of Liverpool, the Uni-
versity of Oxforda ndthe University of Manchester. Brice Dickson, Ron Dudai, Colin Harvey, John
Jackson, Louise Mallinder, John Morison, Hannah Quirk and Marny Requa all provided detailed
comments on previous drafts, and Rachel Rebouche
Ł, Alex Schwartz and Louise Mallinder supplied
excellent research assistance. The sta¡ at the Queen’s and University of Ulster libraries, Linenhall
Library, Public Records O⁄ce and Bar Librarywere helpful in facil itating the archivalwork.Than ks
are also due to Atlantic Philanthropies which funded the research, the judges and lawyers who were
interviewed and to Brona Heinz for her archival materials on the Northern Ireland Association of
Socialist Lawyers. Other lawyers al so gave me access to their own personal archives on the basis of
strictest con¢dentiality and I am gratefulfor their trust. Finally the article is drawn from a larger com-
parativeproject which wasbegu nwith my mentor Stephen Livingstone. Stephen,hims elfa n immen-
sely talented lawyer,died tragically in 2004. I would like to dedicateth is article toh is memory.
1R. Abel, Politics By Other Means: Law and the Struggle Against Apartheid in South Africa 1980^1994
(London: Routledge, 1995).
2eg G. Hogan and C. Walker, PoliticalViolence and the Law in Ireland(Manchester: Manchester Uni-
versity Press,1989); J. Jackson and S.Doran, JudgeWithoutJury: DiplockTrials in theAdversarial System
(Oxford: Oxford University Press,1995); J. Morison and S. Livingstone, Reshaping Public Power:
Northern Irelandand the British Constitutional Crisis (London: Sweeta ndMaxwell, 1995); B. Dickson,
The European Conventionon Human Rights and theNorthernIrelandCon£ict (Oxford: OxfordUniver-
sity Press, 2010).
r2011The Author.The Modern LawReview r2011The Modern Law ReviewLimited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2011) 74(3) 350^384
explored,
3
comparativelylittle has been written about the lawyerswho worked in
the system andwho shaped, challenged and implemented its laws.
Amongstother things, the circumstances of Northern Ireland required lawyers
to consider: their relationships with an emerging civil rights movement; ethical
questions about whether and how to participate in legal proceedings under an
emergency law regime; their responses when theirown members became the vic-
tims of paramilitary and state inspired violence; and whether to challenge long
held viewsas towhat constituted a‘neutral’ legal system. Each of these experiences
speaks forcefully to what Scheingold and Sarat refer to as lawyering as a‘public
profession’ where the contribution to society is more than the acquisition, aggre-
gation and deployment of technical skills.
4
Such a perspective challenges the nar-
row version of professionalismwhich focuses exclusively upon legal competence
and instead suggests that lawyers must face‘head on’their broadersocial, political
or moral responsibilities in a society in con£ict.
5
This paper arises froma number of practical and scholarly interests concerning
the role andresponsibilities of lawyers in con£icted and transitional societies both
inside and outside the courtroom.
6
In total, over ¢fty lawyers and judges in
Northern Ireland were interviewed for this paper. Interviews were conducted in
two maintranches, in 2002^3, and between 2008^2010. All interviews tookplace
after the signing of the Good Friday Agreement, thus subjects were ‘re£ecting
back’ on events which had occurred duringthe con£ict and early transition. Only
one (a barrister) was interviewed twice.
7
3C. Harvey (ed), Human Rights, Equality and D emocratic Renewal in Northern Ireland (Oxford: Hart,
2001); K. McEvoy and J. Morison, ‘Beyond the Constitutional Moment:Law,Transition and
Peacemaking in Northern Ireland’(2003) 26 Fordham International LawJournal 961; C. Campbell
F. N|¤Aola
Łin and C.Har vey,‘The Frontiers of Legal Analysis:Reframingthe Transitionin North-
ern Ireland’(2003) 66 MLR 317.
4A. Saratand S. Scheingold, Somethingto BelieveIn: Politics, Professionalismand Cause-Lawyering (Palo
Alto CA: StanfordUniversity Press, 2004) 23.
5A. Saratand S. Scheingold ‘CauseLawyering and the Reproductionof Professional Authority’ in
A. Sarata ndS. Scheingold (eds), CauseLawyering:PoliticalCommitmentsand ProfessionalResponsibil-
ities (NewYork:Oxford University Press,1998)3.
6eg K. McEvoy, ‘Law, Struggle, and Political Transformation in Northern Ireland’(2000) 27 JLS
542; K. McEvoy,‘Beyond Legalism:Towards a Thicker Understanding of Transitional Justice’
(2007) 34 JLS 411.
7Those interviewed included 12 judges, 18 barristers (9 of whomwere QCs), 21 solicitors and a
number of o⁄cials associated with the Law Society,Director of Public Prosecutions, Bar Council
and Northern Ireland Service.Unless interviewees indicated that they wished their comments to
be explicitly attributed, interviews were conducted on conditions of con¢dential ity and anon-
ymity. Interviews were semi -structured,framed around key human r ights and historical themes
and usually lasted 1^2 hours.A‘purposeful sampling’methodology was deployed where intervie-
wees were chosen using a range ofcr iteria including professional seniority, experience of work-
ing on con£ict or human rights related cases or knowledge and experience of debates within the
professional groupings.Therewas a more or less even divide amongst the barristers between those
who had acted as defence lawyers or prosecutors (or in some cases both) and a number of the
judges were also formerprosecuting couns el.An initial ‘wish list’ of key interviewees wasdrawn
up, these werewritten to and, after some negotiation, almost all agreed to be interviewed. Once
¢eldworkwas commenced, others were recruited usi ng‘snowball’referralsto professionalfrie nds
and colle agues.There are well-established challe nges to an exclusive focus on ‘elite level’ inter-
views such as these, usually concerning access,i nterviewee skil ls at avoiding di⁄cult or challen-
ging questions and the da nger of over-represe nting hegemonic understandings of hi storical
Kieran McEvoy
351
r2011The Author.The Modern LawReview r2011The Modern Law ReviewLimited.
(2011) 74(3) 350^384
The structureof this article is as follows: section one o¡ers abrief outline of the
relevant literature from the sociology of lawyering and the theoretical insights
which may be derived from exploring ‘critical junctures’ in the legal history of a
jurisdiction. Section two examines the era of the civil rights movement and the
introduction and operation of internment without trial, characterisingit as a per-
iod of failed mobilisation in the legal community. Section three charts the role and
response of lawyers to Emergency Laws as a key element of the state’s strategy to
cope with sustained political violence and the introduction of non-jury Diplock
courts.This phase is framed as an examination of the politics of silence.Sectionfour
explores the response of the legal community to attacks upontheir own members
and challenges from fellow lawyers to the prevailing British and Unionist ethos
of the judicial system.The painfully slow transition from indefensible silence to a
principled position in favour of the rights of defence lawyers is tentatively
described as the emergence of a collective legal conscience. The article concludes by
uncoupling the key elements of the local legal culture and its relationship to the
particular political/historical context of the jurisdiction. It argues that an appro-
priately nuanced usage of the post-colonial lens of historical and sociological
scholarship provides insights into how that culture shaped the prevailing ethos
of quietism. It concludes that a more truthful understanding of past silence is a
fundamental pre-requisite to a properly embedded rule of law and a more
grounded notion of legal professionalism.
LAWYERING AND CRITICAL JUNCTURES
Ratherthan o¡ering an exhaustive account of the historyof lawyeringduring the
NorthernIreland con£ict, I explore in some detailcertain ‘critical junctures’ which
speak to some of the broader themes being examined. In order to frame those
discussions properly, in particular the distinct notion of professionalism which
cametothefore,Idrawuponsomeofthekeyideasfromtherelevantliterature
on lawyering.The three themes of most pertinence tothe Northern Ireland con-
text are: the relationship between lawyers and the state; the experiences of ‘cause
lawyering’ wherein lawyers abandonthe traditional positionthat law and lawyers
can be divorced from politics and the question of how well or otherwise lawyers
perform in the context of political violence and state repression.
events unchallenged by critical perspectives ‘from below’. However, in this study, access proved
largely unproblematic, interviews were supplemented by extensive archival research and the
author (and others) had previously conducted extensive research on those directly a¡ected by
the legal process during the Northern Ireland con£ict. Inthat context, interviews with legal elites
were adjudgedthe most appropriatemeans to understand the broader political, social and cultural
forces at work within the professional community. For similar methodologies deployed with
lawyers, see E. Smigel, TheWall Street Lawyer: A Professional Organizational Man? (Bloomington
IA: Indiana University Press, 1969) and C. Shdaimah, ‘Dilemmas of Progressive Lawyering:
Empowermentand Hierarchy’ in A. Sarata ndS. Scheingold (eds),TheWorld Cause Lawyers Make
(Stanford CA:Stanford University Press,20 05). For a more general discussion of relevantdesign
challenges see S. Merriam, Qualitative Research: A Guide to Designand Implementation(San Francisco
CA:Wiley, 2009), and L.Dexter, Elitesand SpecialisedInterviewing(Colchester: ECPR Press, 2006).
What Did the Lawyers Do Duri ng the ‘War’?
352 r2011The Author.The Modern LawReview r2011The Modern Law ReviewLimited.
(2011) 74(3) 350^384
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