Crime, Race and Radical Lawyering
Gary Peller is a professor of law at Georgetown University Law Center. He is an editor of Critical Race Theory: Key Writings That Shaped The Movement, a collection of the foundational essays establishing critical race theory.
Black Rage Confronts the Law by Paul Harris. NYU Press, 1997.
As a radical criminal defense lawyer in the San Francisco Bay area for the last twenty-five years, Paul Harris has exemplified a legal "politics of meaning." He embraces many of the best features of the social struggles of the sixties and seventies while undertaking to expose, challenge, and transform the everyday legal culture in which he works. His legal practice embodies a qualitatively different understanding of law, power, and justice than the traditional models of progressive lawyering, as well as a basic human integrity that resists the forces that would subject his clients to an alienating legal process.
The old left saw "the rule of law" as a marginal, "superstructural" ideology created to legitimate class rule. Left lawyering meant representing workers and dissidents, occasionally winning symbolic concessions while believing that law served the ruling class in the final analysis, or at least until workers seized the reins of State power. Legal work was outside the "real" arenas where power is exercised. The main alternative to that Marxist tradition has historically been the civil liberties/civil rights model of progressive legal practice, which is also centered on the State. That liberal model assumes a neutral rule of law which wins people their rights against censorship or official discrimination and protects individuals by taming state power.
These traditional modes of left and liberal lawyering suffer from their common and narrow preoccupation with State power. Without diminishing its often courageous history, traditional progressive lawyering neglected the ways that legal culture itself constructs and distributes social power; by merely relating the content of legal rules to their supposed instrumental effects on the interests of this or that class, progressives failed to engage the politics of law in a more comprehensive sense.
The power of "law" extends beyond its discrete empirical effects such as "causing" people to be imprisoned or set free, to pay damages or not: legal institutions--encompassing courtrooms, law schools, hearing rooms, law offices, the discourse of legal argument, and doctrinal rules--enact cultural narratives about legitimacy and justice and perform symbolic rituals of neutrality, equality and detachment. Legal institutions help normalize everyday life by making people's experiences of isolation and alienation--in schools, at jobs, on the street--appear to be just and fair, to be the best one could reasonably hope for without risking even more extreme social disintegration.
Rather than understand progressive-lawyering as utilizing the same technical and professional legal skills as any other lawyer, Harris and other creative lawyers like him have been contesting the arenas of legal culture, treating their offices, the courtrooms, and the legal discourse of rules and argumentation all as political sites where the false and alienating ideology of a neutral and objective law can be exposed and disrupted and a new, more caring and humane legal culture developed. This means different, more egalitarian relations within the law office, between lawyers, paralegals, support staff, and other legal workers. It means a reconceived relationship with the "client" and an attempt to foster the client's participation in his own defense rather than simply relate to the proceedings as their passive subject. And it means an enlivened understanding of the trial itself to include, for example, strategies to challenge the ways that even the physical setting of the courtroom sends false messages about law's objectivity, neutrality and disembodiment.
Think about the somber tone of the courtroom, the judge in black robes which separate him from those in the everyday attire of civil society sitting up on a neutral perch at the elevated bench, the jury more or less randomly chosen, the formal rules of evidence, the professional demeanor of the attorneys, the wood paneling and heavy wood tables--all marking the courtroom as an official, depoliticized space outside the fray of normal life, and all vulnerable to resistance and subversion through seemingly simple human acts like a lawyer holding his client's hand rather than leaving him isolated in court--subtle embodiments of care and connection that, when performed by Harris, point the jury away from the despiritualized official space to the possibility of empathy and engagement. …