Sunday, February 13, 2011
Recent events in Egypt are a meaningful reminder of the power of broad-based, nonviolent movements from the history of other nations, such as India. Earlier this month, we explored the presidential election process under the Egyptian Constitution here and its requirements for presidential succession here. Mubarak has since resigned. The Constitution of Egypt is now suspended, with promises of a new constitution.
As legal scholars contemplate the uprising in Egypt with an eye toward the possibility of further popular uprisings in the Middle East, they might also be looking to earlier nonviolent freedom movements. Nearly 81 years ago this week, the All-India Congress Committee authorized a nationwide campaign of civil disobedience aimed a loosening the grip of British colonial rule. Mahatma Gandhi launched the Civil Disobedience Movement in India in March of 1930 by leading the historic Dandi Salt March, also known as the Salt Satyagraha. (Satyagragha translates as “truth seeking” or “asking for truth.”) The Salt March was a pivotal moment in India’s long campaign for independence, because as Gandhi marched from village to village and ultimately to the sea where he and his fellow marchers made salt without paying the reviled British salt tax, a nationalist fervor swept the country.
Professor of Law at WVU Charles R. DiSalvo does just that in a brief chronicle of Gandhi as a practicing attorney in the article “Gandhi: The Transformation of a South African Lawyer, 1897-1898,” in Rethinking Gandhi and Nonviolent Relationality: Global Perspectives (Degjani Ganguly & John Docker, eds. 2008). In it, DiSalvo theorizes that “the experiences Gandhi underwent during the time he practiced law in South Africa transformed his vision of law as an engine of social change. . . ., [and] that this transformation, during which Gandhi lost faith in an ultimately corrupt legal system, constituted a key pre-condition for his eventual embrace of nonviolence.” Id. Overall, “Gandhi’s experience with the law in 1897 and 1898 in particular constitutes a microcosm that foreshadows and helps explain his transformation from business lawyer to civil rights attorney to civil disobedient.” Id. at 100.
DiSalvo traces Gandhi’s legal experiences beginning with his rather common transaction work for Indian business interests in the colony of Natal (now the province of KwaZulu-Natal, South Africa). But after the imposition of a series of legislative acts by the colonial legislature that intended to weaken the influence of Indian merchants, Gandhi was persuaded to “organize [the merchants’] resistance to the European assault on their rights.” Id. at 101. The worst of the laws was the Dealers’ Licenses Act (“DLA”), which required every wholesale and retail business in the colony to obtain a government permit. The Act empowered local “Licensing Officers to deny permits to those who could not maintain their books in English,” and for other “imprecisely drawn grounds,” all of which served as handy pretexts for racial discrimination by local European officials. Unsurprisingly, the essentially standard-less requirements, further compounded by the prohibition of a direct appeal to the courts, lead to racially-motivated crackdown on Indian businesses throughout the colony.
As an advocate for these targeted interests, Gandhi first “relied almost exclusively on petitioning – incessant, persistent, unrelenting petitioning.” Id. at 102. This failed. But, turning to litigation, Gandhi found some success in as-applied challenges to the arbitrary reviewing process of the permitting. Grounded in basic notions of due process – specifically, fair notice – Gandhi was able to convince the colonial Supreme Court to reverse a few licensure denials. But his clever statutory interpretations would only get his Indian clients so far, as the despised anti-Indian Acts remained on the books. In the end,
Gandhi’s recognition of the judiciary’s limitations as a tool for social change marked an early but key turning point in his transformation from lawyer to civil disobedient. While the courts might address procedural irregularities, they could not be counted on to attack basic, underlying norms and the power establishment of which they themselves were a part. The courts would not turn on themselves. The law would not free Gandhi’s people – at least not in the manner he expected it would in 1898.
Id. at 112.
DiSalvo asks of Gandhi, “Is this the end? Does he give up on the law entirely?” His conclusion is subtle, yet powerful:
Gandhi’s frustration with the courts led him to abandon litigation as a tool for social change and contributed to his decision to embrace nonviolent civil disobedience. . . . It is rejection of litigation. It is not a rejection of law. His rejection of litigation is a stage in his developing understanding of the law as much deeper, more expansive and more filled with promise than litigation. In the remainder of his life, he comes to see and believe in the deep underlying structure of the law. It is to this that his nonviolent disobedience appeals. A civil disobedient who willingly subjects himself to the punishment of the system, as Gandhi did, believes in the grand structure of the law, in the rule of law.
Id. at 113.
DiSalvo is presently completing a full legnth book on Ghandi's life as a lawyer. Meanwhile, DiSalvo's interview with Australian Broadcasting Comany from several months ago is a treat; listen to it here.
Of course, it remains to be seen whether distinct comparisons between the Indian experience and recent events in Egypt will prove pertinent. Nevertheless, understanding the intersection of law and the history of nonviolent freedom movements can’t be a bad place to start.
with J. Zak Ritchie
(image: Gandhi in Johannesburg, 1905, via)