Monday, March 31, 2014

Civil Resistance Law and Constructive Program Law

Civil Resistance is... well... civil.  As in, non-violent, courteous, by citizens, and in pursuit of just ends.  It is a broad term used to define a wide range of obstructive activities that build support for and participation in the movement.  The goals can be anything from trying to change the way the general public behaves, trying to change an unjust law, to upholding social norms against usurpers.  At its heart, Civil Resistance is "non-cooperation with evil" and can be done daily in our everyday life with small acts of resistance.  Resistance can take many forms, I consider deviating from problematic norms in our daily lives to be just as important as the larger more confrontational acts.  More confrontational forms include Civil Disobedience and Satyagraha.  Historically, Civil Resistance is far more effective at producing good outcomes for society.  (Check out  the book Why Civil Resistance Works: The Strategic Logic of Nonviolent Conflict by Erica Chenoweth and Maria J. Stephan if you don't believe me)
A related topic is Constructive Program, which I think of as "cooperative with good," and which is deeply interconnected with Civil Resistance.  It involves building just ways of life from the ground up, building the community's capacity, and building just institutions.  I have been thinking quite a bit about how this would work with the housing and the campaign finance issues, which I will probably write about later.  

For the past few months I have been trying to figure out how to use create a private law practice that supports just causes and stays true to my activist roots.  I want to call this practicing "Civil Resistance Law" and "Constructive Program Law."  So to coin the terms, I am going to try to define them.
In this definition, I do not think that only an attorney could or should do this work, I think it would be a collective process with the group.  Anyway, here is my first attempt at defining what an attorney practicing Civil Resistance Law and Constructive Program Law would do.  After reviewing this, I ended up categorizing this list based on the steps for successful movements that Martin Luther King developed.

1. Investigation!  Understanding the situation we find ourselves in is essential to finding a workable strategy to win changes.
  • Research and describe the legal landscape the group and/or movement finds itself in, focusing on the topics that people want to change.  Find cracks and opportunities in the law that the movement can leverage.
  • Research and analyze existing institutions
  • Research the political landscape and help develop an understanding of how it fits into the legal landscape.  
  • Help research the history of this issue and look for insights.  
  • Research alternatives to what exists. 
2. Educate public, build support, and make a personal commitment.

  • Help the group find resources.
  • Distill the legal issues into easily understood explanations and parables.

3. Develop strategies based on the investigation.
  • Imagine what changes to the law would bring about the group's goals, and what the details of the law would be.   
  • Consider all of the findings of the investigation and help develop a strategy to achieve the goals of the group.
  • Develop campaigns, campaign goals, and campaign sequence to achieve larger strategic goals.
4. Discuss options with opponents and negotiate
  • Help develop strategies to build support and organizational capacity.
  • Develop a negotiation strategy and fit it into the larger strategy.
  • Develop and provide access to the system and officials.
  • Help negotiate.
5. When negotiations inevitably break down
  • Help develop escalation tactics.
  • If the group wants to break the law, advise them what will happen if they do.  Note that legal ethics require that an attorney not advise clients to break the law, but may describe what will happen if they do.  The only exception to this is where the client wants to make a good faith challenge to the validity of the law (California Bar Professional Ethics Rule 3-210).  So ensuring compliance with ethics rules is something to always be aware of.
  • Provide legal support for the group when they are arrested, and connect them with additional attorneys who can help.     
6. Reconciliation and change implementation

  • Help develop a face-saving out for the opponent.  There are lots of advantages to this strategy, which I will probably discuss in a later post.
  • Facilitate an agreement and reconciliation between the sides.  There will often need to be a lasting relationship, so an us v them mentality is not helpful.  
  • Helping draft the legal changes and legal requirements.
  • Ensure that enforcement options exist to enforce the changes and monitor compliance.

7.  Reflect and Repeat!

  • Reflect on the campaign and how it worked.
  • Go back to step one and start investigating for another campaign
  • Help revise longterm strategy as necessary.  
I also think that the principles of Rebellious Lawyering are essential to this kind of practice of law, such as the emphasis on community leadership and problem-solving.   Anyway, that is what I have thought of so far, let me know what you think!

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