Limits of the Law

By Richard Pithouse · 14 Dec 2008

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When the post-apartheid deal went down, the demands for social justice that survived the negotiations were written into the rights enshrined in our new legal order. At the same time, the popular struggles that had forced key issues onto the national agenda were demobilised. It was often assumed that because the rights that had been won were backed by the law, the rule of law over the messiness of social life would ensure that these rights would be prescriptions rather than aspirations.

But just as the laws that are written are the result of the relative power of contesting social forces, so too are the ways that laws are implemented dependent on the shifting balance of power. In contemporary South Africa unlawful and in strict legal terms criminal state action is routine. In Durban and the East Rand, shack dwellers are forced from their homes by violent state action that is undertaken without the court order required by the law. Everywhere the police extort money from documented migrants on the pain of having their papers torn up, parents are forced to pay school fees from food money in order to have end of year results released, protests are unlawfully banned and peaceful marchers are attacked by the police and so on. This kind of every day violation of the law is able to happen because there is often a shared consensus amongst the police, politicians, officials, media and ordinary middle class citizens that these acts are acceptable even if they are illegal or criminal in terms of the law. Very often it is middle class values and prejudices rather than the law that really rule society. But challenges to the law do also come from below. For instance the state may send in the police or private security to disconnect a shack settlement from electricity three or four times, assaulting and arresting a few people on each occasion. But if people reconnect the next day and collect money to pay bail and fines, they can, in the end, simply by sheer persistence, win a de facto although not legal right to connect to electricity.

But while the actual practice of the law is constantly renegotiated from above and below these contending pressures on the law are far from equal. The poor may have numbers on their side, but the rich, be they organised in business, politics or civil society, have vastly easier access to power and influence.

This inequality in influence is widely recognised. But it is often assumed that it is ultimately mediated by the fact that, at the end of the proverbial day, everyone is equal before the law. This is a fantasy. For a start, the courts do not exist in rarefied space above society. Some judges are openly hostile to poor people and poor people's movements. But while judgments can be appealed and debated; if you can't even get to a court on the first place, your rights, no matter how elegantly formulated in principle, mean very little in practice. The fundamental barrier to the justice dispensed by the courts is that access to the courts costs a lot of money because lawyers cost a lot of money. This fact renders access to justice completely unequal.

The interventions that have been put in place to mediate this by the state and civil society are wholly inadequate. The state's intervention, the legal aid system, simply doesn't work for poor people.  It is inefficient, often outrightly incompetent and sometimes demeaning in its treatment of poor people. Moreover legal aid lawyers often advise poor clients on the basis of the lawyers' own class prejudices rather than the stated interests of the clients. This comes through very clearly with evictions where, certainly in Durban and Pinetown anyway, legal aid lawyers routinely advise poor clients to accept eviction on the basis that they do not own the land or property in question despite the fact that the law gives unlawful occupiers clear rights.

The legal NGOs, university law clinics and the few legal firms that take on pro bono work provide uneven services to poor people. Some certainly do remarkable work but they cannot take every case with the result that most people remain unable to access the courts.

Of course poor people can and do mobilise outside of the courts, and sometimes very effectively, to counter the power of the rich. The shack dweller's movement Abahlali baseMjondolo is one of the best known examples of the development of popular power by a poor people's organisation. While some of the victories of the movement have been won in court with the support of the Legal Resources Centre, a good number, including some of their most important victories such as the right to collective bargaining and the right to hold urban land and to have it serviced and upgraded, have been won outside of the courts. But the kind of sustained mass mobilisation achieved by Abahlali baseMjondolo over the last four years is a unique achievement and one that it is not always possible for people to replicate. And even if it is possible, people really shouldn't have to be fighting protracted struggles to win in practice what the law already guarantees in principle. We should be able to secure in practice what has been won in principle and them move forward.

We urgently need a serious conversation about how to decommodify access to the courts. For as long as access to the courts is a privilege largely reserved for powerful forces in society rather than a universal right for all the powerful will continue to bend the letter, spirit and practice of the law in their favour.

Perhaps, as a start, civil society could consider serious donor support for poor people's organisations to employ their own dedicated lawyers. The state could consider major investment into the legal aid system and further mechanisms to ensure that lawyers take on more pro bono work.

Dr. Pithouse teaches politics at Rhodes University.

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Rory Short
12 Dec

Equalising Power

The source of this problem of inequality before the law or anywhere else for that matter is rooted in the income and wealth disparities in society. This is where the first attack on the problem must be mounted.

We need a collective thrust to minise the wealth and income xdisparities that currently exist in society. A wholly democratic way to achieve this would be to have two boundaries democratically set, a cap on wealth and a basic income that is given by the state to every citizen.

If the wealth inequalites in society were democratically minimised you would have a playing field in Society where citzens were more equally empowered in every sphere of life.

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