Monday, December 09, 2013

Gandhi, King, Mandela, and the Law

By Mike Dorf

The death of Nelson Mandela has understandably led to a worldwide outpouring of grief and admiration for a true giant.  Here I want to add a lawyer's take on how to think about his place in history.

As the title of this post suggests, it is tempting to think about Mandela as one of the few Twentieth Century world-historical figures who successfully battled injustice for his people through the espousal of universalist principles and non-violence. I think that is broadly accurate but that it leaves out some nuance.

Gandhi is sometimes said to have been an absolute pacifist.  After all, he opposed violence even by Jews against Nazis, as in this 1938 essay, and if one thinks that satyagraha is the right strategy in response to Nazis it's hard to see when one would advocate the use of force.  Still, the point is somewhat murky.  In Martin Buber's 1939 reply to Gandhi, Buber quoted a 1922 speech in which Gandhi said that he would prefer that India become free "even by violence rather than that she remain in bondage." Buber's point was that Gandhi himself recognized the need for political violence as a last resort in extremis and that therefore Gandhi's advice to Jews in Europe was inconsistent with Gandhi's own prior positions. (There is also a great deal of discussion of the role of Jews and Arabs in British Mandatory Palestine, which I treat as tangential here.) So it's possible that Gandhi's views evolved towards absolute nonviolence between 1922 and 1938, or perhaps that notwithstanding his 1938 statement with regard to the Nazis, Gandhi remained committed to the possibility that sometimes it would be acceptable to employ political violence.

Dr. King quite self-consciously traced his commitment to non-violence to the influence of Gandhi. His 1958 essay, My Pilgrimage to Nonviolence, is both a stunning demonstration of how, not that long ago, a great public figure could also unashamedly be a great intellectual, and the best defense of Gandhi's near-absolutism. King confronts the challenge that Buber laid down for Gandhi in the form of a similar challenge from Reinhold Niebuhr, who, echoing Buber, contended that satyagraha--as an appeal to the heart of the oppressor--can only work when the oppressor has a heart, as was true of British imperialists but not of Nazis. King's answer was that Niebuhr conceived of satyagraha as submission rather than as nonviolent resistance--an answer that I confess that I find unsatisfactory.  I think Niebuhr and Buber understood that nonviolent resistance can sometimes be a powerful and active tool, but that even aggressive nonviolence is sometimes insufficient to combat very great evils. King gave what I think was a better answer in his 1968 speech, Remaining Awake Through a Great Revolution, when he said that, in light of nuclear weapons, the choice is no longer "between violence and nonviolence. It is either nonviolence or nonexistence." And to be fair to King, perhaps he already had that idea in mind when, in the 1958 essay, he described "the pacifist position not as sinless but as the lesser evil . . . ."

Mandela's career makes the case that a principled commitment to nonviolence as a first, second and third choice nonetheless leaves room for the possibility that resort to violence may be justified as a last resort. In the last several days, numerous pundits have referred to Mandela as a "pragmatist," by which they tend to mean that Mandela did not elevate abstract principles over concrete results, even if it meant compromising with those whose beliefs and values he did not entirely share.  That's accurate and fair enough, but I would suggest that the characterization mistakenly opposes pragmatism to principle.  There are times when one rightly eschews compromise because to compromise would be to abandon a fundamental principle.  But there are many circumstances in which principle and pragmatism are compatible.

In his autobiography, The Long Walk to Freedom, Mandela explained that he came to advocate armed struggle by the ANC for two main reasons.  First, nonviolence was no longer working against a state that itself had become increasingly violent in cracking down on peaceful efforts to end apartheid. He wrote: "I used an old African expression: Sebatana ha se bokwe ka diatla (The attacks of the wild beast cannot be averted with only bare hands.)" And second, Mandela saw that some black, colored and anti-apartheid white South Africans were already taking up arms; he thought that the use of force would be both more effective and better calibrated (by targeting the government's physical assets rather than people) if coordinated by the ANC than if left to rogue individuals.

Is that a principled or a purely pragmatic stand? Mandela distinguished his own position from that of ANC President Albert Luthuli who had, in Mandela's words "a moral commitment to nonviolence." Reading those words, it is easy to think that Luthuli lived by the moral principle espoused by Gandhi and King, whereas Mandela only favored nonviolence opportunistically and situationally--that is, one can readily fall into the trap of contrasting pacifist principle with the supposed pragmatism of calibrated violence.

But I think the dichotomy is ultimately unfair, because Mandela's position was also very much a matter of moral principle.  Like Niebuhr, Buber and many others who reject pacifism but nonetheless generally aim at peace, Mandela thought that under certain circumstances, resort to violence was not only morally permissible but morally obligatory.

Looking back at Mandela's autobiography now, I am struck by how closely his views about the permissibility of violence track both the domestic law of self-defense and the international law of war. In both domains, force may be used in response to force, but only so long as it is necessary and proportionate--which seems to be the very principle that Mandela articulated in support of the ANC's resort to force.

I would like to say that Mandela took his principles from the law because he was a lawyer, but that would be too pat. Gandhi was also a lawyer (and, of course, during the formative years of his life, a resident of South Africa, albeit a full generation before Mandela), but as we have seen, Gandhi's views about violence and nonviolence differed substantially from those of Mandela.

Still, despite their differences, it is fair to say that legal training and experience practicing law honed the sense of justice that informed the life work of both Gandhi and Mandela.  And so, looking back, we lawyers have special reason to take inspiration from both of them. If I am right that two out of the last century's three greatest champions of civil rights were lawyers, we have at least the kernel of an answer to those who think the law an ignoble calling.