(This is a guest post by Shankar Gopalakrishnan).
Gautam Bhatia and Goutam Shivshankar recently have had an illuminating and extensive debate (see here, here and here) over the ethics of representing “immoral” clients – one of the more vexing questions that confronts not only lawyers but anyone attempting to understand or engage with the legal system. In this specific case the question revolves around MJ Akbar’s decision to file a defamation case against those accusing him of sexual harassment and assault, and how morally correct it is for lawyers to choose to represent such a client in such a case.
Bhatia and Shivshankar approach this question from the angle of the ethics of the legal profession. But the ethical dilemmas around the Akbar case are rooted fundamentally in questions of power. Hence I would like to approach it from a different angle – what is the functional place of the legal system in power relations within the social system we have? Or, more broadly, what role does it play in society?
The ideas advanced below derive from the Marxist tradition, but I don’t think one needs to be a Marxist to see their merit. This argument only requires acceptance of two propositions: 1) that we live in a society, and a world, deeply riven by structures of oppression and injustice; and 2) that there are constant struggles over these structures, both by the oppressed attempting to resist or end their oppression, and by oppressors seeking to consolidate, extend or modify it. One should note that I’m not taking the position that there is just one single class or section of oppressors; all that one is postulating is that there are structures of oppression and struggles over them.
In such a context the logical next question is – why then do we live in a global and national system that is broadly ‘stable’? Stable in the sense of not descending into chaos nor experiencing mass political revolutions, most of the time. How, in other words, does this system broadly succeed in reproducing itself? Or, to use the more common formulation, “why don’t people rise up?”
The broad answer appears to be that all modern political systems operate on the basis of some kind of an unequal and unjust compromise – one where certain interests of the oppressed are conceded while preserving the core structures of oppression. But since this is never actually enough to address the issue of oppression, this system is also fundamentally unstable. There is a constant struggle over what will be conceded and what will not be conceded.
Those familiar with Marxist thinking will of course recognise this as a very vague and oversimplified definition of the Gramscian concept of hegemony. But too often, both on the left and otherwise, hegemony is mistaken to mean some kind of ruling class conspiracy, whereby fake ideas are implanted in people’s minds and the oppressed are deceived into believing in their own oppression. In reality, no oppressive or ruling class in history has had some magic universal ability to see the future and conspire to avoid it all the time; and more importantly no class of oppressed has been such docile sheep. The reality is that the concessions that are granted are almost always the result of struggles. Hegemony is not and can never be a purely one-sided process. The issue is not that the oppressor figures out what “crumbs to throw to the masses” but that oppressors concede out of compulsion. But in the process of conceding, those in power attempt to defuse and twist the struggle away from their core interests. One of the fundamental ways in which this happens is not only by ‘deflecting’ the issue but – to use the phrasing of Nicos Poulantzas – by a constant effort to organise the oppressors while disorganising the oppressed.
Let’s for instance look at Indian labour law, which is a stark example of this process in action. The fact that labour laws exist at all is a result of prior working class struggles and the fear of future working class organising. No capitalist wants these laws and there is a constant effort to get rid of them, which in turn meets further working class resistance. What emerges from these struggles is a legal regime that simultaneously enshrines some progressive principles on paper while being specifically and explicitly structured to disempower the workers themselves. Hence we have the fact that, while non-payment of wages, violations of safety requirements, etc have been made criminal offences, the laws then bar workers from filing complaints directly (only labour inspectors or, for construction workers, unions can file cases). Strikes are allowed but then subjected to conditions and restrictions that make them far more difficult to carry out. Numerical limits and arcane exemptions exclude the majority of Indian workers from labour law and impose a burden of proof on them, indirectly, to show that the law applies to them in the first place. All of this has the effect not only of denying workers their rights but of actively disorganising them, preventing them from exercising and thereby experiencing their collective power.
In other words, the very victory of workers – the existence of labour law – is turned into an instrument of trying to ensure their future defeat. But, again, no instrument can actually ensure that; what happens instead is that the conflict moves on to a new terrain. If those organising manage to build on their victories, they move on to a more liberatory ‘next’ stage in their struggle, and if not, they are thrown on to the defensive until they are able to do so. One can see the same pattern in many other spheres of society – such as caste reservations, women’s struggles, or even the process of democratic elections itself.
Coming back to the courts, the question arises – what role do they play in this dynamic? Again, I want to avoid the approach that simply dismisses the legal system as some kind of oppressive fiction intended to be a deceit on the population (though to many of us it often feels that way). If that kind of trickery were feasible, it could be achieved far more easily. In reality the process of law-making and adjudication is a core structural element in every modern society’s political process and it is in many ways the central landscape of political struggle. In this too there are liberatory possibilities. Fundamental rights, the progressive aspects of the Constitution, the idea of a ‘rule of law’, the court system’s procedural guarantees, and even the ‘cab rank rule’ – which we come back to below – are all victories against oppressive systems (most of all, of course, the ones that are somewhat over-broadly described as ‘feudal’).
But, that said, it seems to me clear that, out of the entire landscape of the law, it is the court system that most of all also advances the process of disorganisation. This sounds terribly abstract, but in practice anyone who has attempted to organise people against some injustice, big or small, will know how deadly the legal process can be. Long before the powerful attempt repression, the process itself attempts exhaustion. The court system is an alienating, frustrating, confusing and extremely disempowering experience for the vast majority of people (and not just in India, of course). This is not only true in cases of social struggle. It is true of individual cases as well, and perhaps the reason that lawyers are so widely hated. The only social sections for whom the legal system do not have this effect are the truly powerful, who use it to sort out their differences in a manner that avoids having to murder each other (once again, an organising function). For anyone who is a target of oppression, going to court means giving up the few advantages the oppressed often have (the power of numbers, the moral sense of justice) and instead individualising, atomising and often destroying one’s own strength. Indeed, in cases of conscious organised struggle, one of the key strategic decisions to be made is often how to ensure that any engagement with the courts does not have this effect.
If we view the court system in this manner, I think the moral debate around representation becomes clearer. The cab rank rule that both Bhatia and Shivshankar discuss takes on a different meaning. In a sense, both of them are right. Shivshankar is right that the rule was introduced to protect litigants, and in that sense it represents one facet of the court system’s need to be fair and to be seen to be fair. But Bhatia is even more right that in practice this rule has become a protection for lawyers. His point about the fact that the cab rank rule would require a UK NHS-style, publicly funded “National Legal Service” is very valid. Indeed, if the cab rank rule is articulated without simultaneously articulating this need, it becomes at best a pious incantation with little actual meaning – and at worst, as in this case, it becomes a fig leaf for the moral choices of individual lawyers, a shield for the very arbitrariness and unfairness it was meant to prevent. Once again, a victory for struggles against oppression is being sought to be turned into an instrument to prevent future victories.
The question then arises as to what moral implications individual lawyers’ choices have. I find it difficult to credit Shivshankar’s argument – that refusing immoral clients funnels them towards immoral lawyers – with much validity. This will happen in any case, simply because an ‘immoral’ client who seeks to bend or break the rules of justice will simply change their lawyer if their ‘moral’ lawyer refuses to do so. To me, if we regard these moral choices and the court system as being embedded in the larger struggles of society (rather than as floating above these struggles), the moral role of lawyers emerges automatically. The MJ Akbar case is a classic, stark instance of a powerful man using a powerful law firm to isolate, repress and exhaust his accusers. It does not matter if we assume that Akbar is guilty or not. It does not even matter if he wins. What matters is the way he has chosen to respond – that is, to choose not only to use his already considerable power to respond in public, but to deploy that power even further by filing a massive criminal defamation suit through a high powered law firm. This has the effect of repressing and disorganising the MeToo movement, creating a climate of fear and forcing his accusers into individual, expensive and time-consuming defenses, whatever Akbar’s guilt. If this is the case, no lawyer interested in being part of a just society should be part of that process. In this sense also there is clearly no parallel between this situation and the Kasab case.
In this sense, I ultimately agree with Bhatia. Lawyers’ choices, like all other choices, have moral implications. The morality of those choices has to be seen against the larger backdrop not only of the individual morality of clients, but against the morality of the legal process and what it means for social change. An integral part of the legal process’ disorganising effect is its constant attempt to force us to see social and political structures as if they were individual choices, to compel us to see the unequal as equal and the collective as atoms. Perhaps the more fundamental moral choice that all of us, lawyers or non-lawyers, have to make is whether we accept that attempt at disorganisation, and if we do not, to make our decisions about our work accordingly.
 The distinction between Marxist and other approaches here would be around the analytical primacy one accords to the production process, and hence to class, in understanding these structures, but that distinction is not material to our argument here.
 Here as well, I am not getting into the question of the specific struggles, or their class character, that led to these changes. One might note that this approach overall differs from the strand of left orthodoxy that dismisses these tenets as fictional deceits that only defend the interests of the bourgeoisie. That larger debate is outside our scope here, of course, but it draws on the heterodox Marxist theories of the capitalist state that attempted to develop the concept of hegemony.