Schein Gold 1988

Cardiff University
Radical Lawyers and Socialist Ideals

Author(s): Stuart A. Scheingold
Source: Journal of Law and Society, Vol. 15, No. 1, Law, Democracy & Social Justice
(Spring, 1988), pp. 122-138
Published by: Wiley on behalf of Cardiff University
Stable URL: http://www.jstor.org/stable/1410079
Accessed: 27-06-2016 08:43 UTC
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JOURNAL OF LAW AND SOCIETY
VOLUME 15, NUMBER I, SPRING 1988

0263-323X $3.00
Radical Lawyers and Socialist Ideals
STUART A. SCHEINGOLD*
INTRODUCTION
There is a good deal of scepticism about radical lawyers. Some would go so far
as to argue that radical lawyering is a contradiction in terms. First, there is a
double distrust of rights, the principal tool of radical lawyers. Rights are seen
both as empty promises which do not have significant policy consequences
and as integrally implicated in the prevailing hegemony and, therefore, hardly
a credible weapon against it.1 The companion complaint against radical
lawyers is that they tend to adapt their clients to, rather than liberate them
from, the constraints imposed by the welfare state, the market, criminal
process, and other sites of radical practice.2
Both of these concerns will be explored in this paper, which focuses on
radical lawyers in London. The twenty-five radical lawyers whom I inter-
viewed from October 1986 to March 1987 worked on a wide variety of
problems in varied professional settings and for a diverse collection of social,
political, and professional objectives. I reached these barristers and solicitors
through an informal grapevine and all that they have unequivocally in
common is that they think of themselves - and/or are thought of by others - as
radical lawyers.3
*Department of Political Science, The University of Washington, Seattle,

Washington 98195, United States of America.
This paper was originally delivered at a meeting of the Australian Society of Legal Philosophy at
Sydney University Law School in July 1987. Because I have burdened colleagues on several
continents with preliminary versions of this paper my debts are too heavy to acknowledge
adequately. Certainly, collective thanks are due to members of the law faculties at Brunel,
Groenigen, Utrecht, Middlesex Polytechnic, and the Australian National universities where I
made presentations on this work - as well as to the University of New South Wales which
provided me with office space, generous staff support, and a stimulating and congenial setting.
For their patience and encouragement during preparatory discussions I am grateful to Richard
Abel, Jeremy Cooper, Rajeev Dhavan, Alan Hunt, Stuart Hall, Robert Reiner, Nikolas Rose,
David Sugarman, and David Nelken. Ian Marsh, Mari Matsuda, Alex Ziegert and especially
Martin Krygier provided careful and constructive critiques of initial drafts. My heaviest debt is to
the solicitors and barristers who helped me to understand the satisfactions and frustrations of
radical legal practice in the United Kingdom.
122
Despite these variations, there was a readily identifiable modal tendency
with a distinct socialist bias. Asa veteran solicitor put it, "We have always had
a social conscience here, if you like, or left-wing political leanings."4 Among
my respondents, the typical profile would include a professional commitment
to the 'have-nots' in society: a tendency to think in terms of the class struggle;
membership in, or sympathy with, the Haldane Society of Socialist Lawyers;
and acceptance of a relatively modest level of income from a practice financed
largely by legal aid - or through redistribution of the returns of lucrative
commercial law to 'social conscience' work. In sum, the commitment of these
radicals to a more egalitarian distribution of benefits and influence clearly
suggests that they do, in fact, identify with - and are working on behalf of -
socialist ideals.
Of course, socialist aspirations only heighten scepticism about radical
lawyering. First of all, the welfare state - the primary redistributive site of
radical practice - is a decidedly suspect carrier of socialist values and thus a
potential trap for socialist-minded lawyers and their clients. These welfare
state issues will be considered in the second section of this paper. Then there is
the rights problem: the third section will explore the manifest tension between
rights, with their roots in liberal individualism, and the collectivist values of
socialism. These problems about socialist principles are not, however,
paramount for radical lawyers - particularly these days when Thatcherism has
socialists on the defensive. Consequently, the focus in the fourth section will
shift from principle to practice with an analysis of how radical lawyers in
Britain are responding to the contraction of the welfare state and to the
increasingly coercive public order tendencies of the Thatcher Government.
The concluding section puts radical practice back into the broader context of
socialist ideals.
While there are legitimate doubts about the sites and tools of radical
practice, its socialist authenticity is enhanced by the determination of radical
lawyers to identify closely with the oppressive life circumstances of their
clients:
Because of the kind of work we do for those who are abused by the police or evicted from
their homes or bashed by their husbands, the advocacy needed to convince a court . . . is
not just a question of taking a written brief and putting a case in a mechanical way, it's very
much about speaking in the voice of those who have real grievances but no easy way to
voice them. ... I really mean an ability to treat these injustices as real, as widespread, as
something which just doesn't happen to 'other people'. Which you don't get involved in
through charity, but you feel you are part of the community and you want to work with the
class of people who are suffering.5
At the very least, then, radical lawyers bear credible witness to the oppressions
of British working-class and underclass life. Additionally, in converting
these oppressions into justiciable forms, they universalise them - give
them authoritative voice and political import. In so doing, radical lawyers
advance socialist ideals, much in the manner of Gramsci's "organic intel-
lectuals", by providing a demystifying critique of social practice and
prevailing values.6
123
THE WELFARE STATE
There are, on the Left, two sharply contrasting interpretations of the welfare
state - each with its own implications for socialist ideals and for radical
lawyers. According to the 'moderate' Left, the welfare state is a powerful
symbol and the most successful realisation of socialist ideals. From this
perspective, the protection and perfection of the welfare state is a worthy
objective for radical lawyers. The 'hard' Left, in contrast, is inclined to view
the welfare state primarily as a new form of domination in which the
disadvantaged and the dispossessed are yoked into a coercive and demeaning
dependency relationship with the state. Given this interpretation, ameliorative
benefits, which are the most that can be expected from radical practice, have
the perverse effect of acclimatising the oppressed to the unacceptable - thus
betraying socialist ideals.
But is it really necessary to choose between these interpretations - each of
which identifies important truths about the welfare state? The welfare state is
undoubtedly a particularly imposing manifestation of the collectivism which
has dominated post-war British politics. The shift from a liberal state to a
collectivist state can, as Stuart Hall points out, be seen as a step, albeit an
ambivalent and hazardous step, in the direction of socialist values. On the one
hand, the welfare state amounts to "an expansion of the rights of citizenship
from the sphere of legal and political to economic and social rights".' On the
other hand, there is a disciplinary side to the welfare state - directed, among
other things, at securing "maximization of the mobility of labour power and
the cultivation of labour power of a particular quality"."
For a variety of reasons, historical and contemporary, the disciplinary side
of the welfare state has come to loom particularly large. Disciplinary
tendencies have been abetted by the bureaucratic forms adopted by the
welfare state and by the powerful residual streak of individualism in the
British political culture. Bureaucratic forms promoted technocracy at the
expense of democracy:
Challenges for reform from below were first defined in public discourse by new liberal or
Fabian social theorists, taken up by progressive state administrators, reconstituted in a
bureaucratic mould, installed as state policy and at that point presented back to the
people."
Individualism generated pressures for dispensing benefits in a grudging

fashion, solely to the 'deserving poor'. Thus, the 'hard' Left critique:
[R]epressiveness is, in the view of the critics, indicated by the fact that in order to qualify
for the benefits and services of the welfare state the client must not only prove his or her
need, but must also be a deserving client - a client, that is, who complies with the dominant
economic, political and cultural standards and norms of the society.10
More recently, "the fiscal crisis of the state" has cut into available resources in
England and elsewhere." Finally, the resurgence of neo-liberalism under
Margaret Thatcher, which calls the legitimacy of the welfare state into
question, has further eroded the socialist potential of welfare state
collectivism.'12
124
Under the circumstances, it might seem that the welfare state is a hopeless
arena for socialist activism, but this is not necessarily the case. At the very
least, the welfare state is a lifeline for its beneficiaries and is dedicated,
however modestly and ambivalently, to redistributive values. More funda-
mentally, Claus Offe argues that the welfare state, in which distribution
is "not directly determined by market criteria . . . constitutes a political
opportunity for the Left":
Areas of social life that have been decommodified by welfare state interventions can be
developed, through political struggle, into relatively autonomous subsystems of life
oriented to the production and distribution of use values.13
Accordingly, the welfare state is probably best thought of as an arena for

struggle on behalf of socialist ideals rather than as a repository or a betrayal of
those ideals.14
What is the message of all this for radical lawyers? Clearly the welfare state
must be approached with caution. It has the potential to coerce and co-opt. As
Hartley Dean puts it:
The process [ofsecuring benefits] is inherently individuating ... The poor (including the
non-unionised low paid) have little if any opportunity to compare their experiences ..
and the sheer complexity of the administration . . . leave them with no view of their
relationship to the Welfare State other than ... as one of highly bureaucratised
dependency. In this context, the apparent impossibility of "managing" upon the terms set
by the State and the ostensibly often punitive actions of the Welfare State can take on
meaning as a very personal form of oppression and . . . can in fact be undermining to the
integrity of the individual.15
While only part of the story, the mean-spirited and bureaucratic character of
the contemporary welfare state surely contributes to the pervasive sense of
powerlessness within the lower strata of society.
Dean argues that there are, however, opportunities for radical lawyers to
counter the corrosive impact of the welfare state. To do so, they must go
beyond the conventional sequence of pursuing client interests within the
existing rule system: "explaining the applicability and context of the rule .
and assisting with an appeal to the appropriate tribunal".16 While benefits
may be secured in this way, lawyers will also become complicit in their clients'
degrading dependency relationships with the welfare state. The alternative is
to deploy rights so as to empower beneficiaries. A rights strategy, Dean
argues, will make clients more assertive and the welfare state more respons-
ive.17 But this approach leads directly to the other basic question about
radical lawyering, that of the compatibility of rights with socialist ideals.
SOCIALIST RIGHTS
Rights are the essential, albeit suspect, political weapon available to radical
lawyers.1s To some extent, the suspicion has to do with the substantive
dimensions of rights in liberal-capitalist societies. There is, to be sure, a
growing appreciation among socialists that even the traditional rights to "life,
125
liberty and property" provide necessary protections against state and corpor-
ate power.'9 But sufficient protection would, at the very least, have to extend
beyond traditional boundaries - to welfare rights which provide for material
needs; to economic rights which guarantee unalienated labour; and to political
rights which provide participatory access to, and ensure the accountability of,
powerholders.20 Extending the reach of substantive protections does not,
however, meet the fundamental socialist objections to rights.
There are reasons to believe that the very idea of socialist rights is
contradictory - that the theory and practice of rights are incompatible with a
socialist ethos. According to conventional understandings, rights attach to
individuals, qua individuals, and carry connotations of fundamental entitle-
ment. Thus individuals are encouraged to pursue these rights, unequivocally
and uncompromisingly - except in so far as rights may be in conflict with one
another.
From a socialist perspective, all of this is problematic in a couple of ways.
First, "rights-mindedness", or a kind of aggressive individualism, is nurtured
among claimants.21 Secondly, and more broadly, these individualistic claims
take precedence over the interests of the collectivity. Nor, according to
Nikolas Rose, can these objections be met by positing and pursuing the
'collective' rights of groups through, for example, class action suits:
Whether the language of rights is deployed in respect of individuals or, as more recently, in
an attempt to formulate theories of collective rights, its reality is to disguise the moral and
political grounds upon which interests are construed and their satisfaction demanded. For
example, by utilizing the courts to establish a right and to demand that it be met, rights
strategists are seeking to direct resources to those sectors which they are currently
supporting, at the expense of other[s] who have no such advocates."22
Collective rights are, in other words, no more than a play on words, since they
attach to one segment of the society, which is pitted against other segments, or
against the collectivity, in a zero-sum struggle over scarce resources. Thus,
even in their so-called 'collective' form, rights are at odds with socialist values
in that they encourage competition rather than co-operation and division
rather than unity.
If rights and collectivism are, indeed, incompatible, the contribution of
radical lawyers to socialist ideals will be severely circumscribed. They may
have an important role to play in defensive struggles - for example, in using
traditional due process rights to protect socialist activists from political
repression. But they will be relegated to the sidelines of the positive struggle to
articulate and realise socialist ideals. It is for this reason that Tom Campbell's
thoughtful and systematic effort to formulate a socialist conception of rights is
directly germane to this inquiry. Campbell's dual burden is to reconceptualise
rights so as to make them compatible with socialist values while at the same
time maintaining their essential integrity as rights. As I see it, he is more
successful with respect to compatibility than integrity. He proposes a
conception of rights with a genuinely collectivist cast but in so doing he also, as
I shall argue below, robs rights of their capacity to articulate practical
principles of social action.
126
Campbell's starting point is the socialist principle of "equal satisfaction of
need at the highest level of fulfilment".23 This principle has to do in part with
the allocation of wealth and in part with its production. It is allocative in so far
as 'need' becomes the basis for distribution and productive in so far as it aims
at the highest level of fulfilment.
With respect to allocation, the role of rights is straightforward. Given a
multiplicity of claims on finite resources, it is unrealistic to think that the
criteria for determining need will be self-evident and amenable to direct or
ad hoc action unmediated by rules:
Even the consistent application of the simplest distributive criteria, as in the allocation of
available food according to the degree of hunger felt by the distributees, involves following
a rule which can be expressed in terms of rights.24
Rules are necessary tools for equitable distribution in a complex society - for
treating like cases alike. The rules give rise, ipsofacto, to correlative patterns of
obligations and rights - imposing, for example, obligations on welfare state
administrators and providing welfare state beneficiaries with rights. What
matters, in short, is that the allocative criteria are compatible with socialist
values.
It is much more difficult to square the concept of rights with the productive
side of socialist principles of distribution. While the articulation of a right
makes obligatory the provision of a remedy, there is nothing in the
adjudicative process to generate the resources required for that remedy.
Indeed, the validity of rights claims is in no way dependent upon such practical
considerations:
To have a right to work [for example] excludes . . . the acceptance of any argument on
the behalf of those entrusted with the task of job-provision that, for reasons of expense,
convenience or public policy, the interest in question cannot be met.25
For this reason, Campbell reformulates the remedial side of rights, so that the
remedy is linked to production rather than to finding fault:
In the case of the right to work the immediately enforceable legal duties would be those
explicity laid on officials who are entrusted with the oversight of the community's capacity
to create wealth.26 Welfare rights function primarily as directives to administrators and
only secondarily as legal instruments in the hands of aggrieved persons. . . . Welfare
rights serve as the basis for positive action by government to discover and meet the needs of
those requiring assistance.27
The reformulation serves the dual purpose of relieving rights holders of the
onus of rights-minded individualism and of making the practice of rights
productive rather than punitive:
The fact that meeting needs requires the co-operative effort of many individuals [including
the right holder], involving public or collective procedures, means that the fulfilment of
typically socialist duties must be mediated through social procedures.28
The rights claim, in other words, becomes the mechanism whereby the state is
encouraged to create the wherewithal "to equalise the satisfaction of need at
the highest level of fulfilment".
127
Campbell's reformulation might be suitable for the fully realised socialist
state, which is his primary concern. But his socialist rights would not be very
useful in the inhospitable setting provided by the contemporary British
welfare state. Given its scarce resources and suspect values, there is reason to
expect stubborn resistance to rights-based claims - not the constructive state
engagement which is at the heart of Campbell's scheme of socialist rights:
They are rights whose implementation depends less on their being activated by the right-
bearer than it does on organisation. Welfare rights serve as the basis for positive action by
government to discover and meet the needs of those requiring assistance.29
On the one hand, Campbell declares that welfare rights must have "the
priority of fundamental law".a0 On the other hand, he denies these rights the
institutional processes and aggressive mindset that give rights their vitality. In
short, Campbell gives with the right hand what he takes away with the left. To
make rights compatible with socialist values, he undermines their essential
quality - their capacity, in the words of Wojciech Sadurski, to provide some
measure of protection in the case of "conflict between the rights-holder and
the bearer of obligations correlated to this right".31
Accordingly, if they are to be deployed effectually in the service of socialist
ideals, rights must be accepted pretty much as is. As Zenon Bankowski puts it,
"To give the concept of rights some real meaning you cannot make 'minor
modifications' that deprive it of any bite and this is what Campbell has
done."32 It follows, to return to Hartley Dean, that the appropriate role of
radical lawyers may well be "a nurturing of that person's legitimate sense of
grievance and an exploration of the ways in which to challenge not only the
specific ruling but the general rule by which they may be aggrieved". Dean
argues, in other words, that radical lawyers should empower their clients and
bring pressure to bear on accepted norms and practices - in short, that they
should work to transform dependency into citizenship.33
Of course, there are costs that attach to introducing competitive individual-
ism into a socialist strategy. Rights strategies, in a context of scarce resources,
will tend to pit disadvantaged groups against one another. And, as Nikolas
Rose points out, adversary proceedings are not likely to contribute to the
solution of policy problems.34 These drawbacks are illustrated by the
experiences of a solicitor practising on the fringes of Brixton on behalf of
tenants on council estates:
You have this great apparatus set up. The people I am litigating against are public
organisations, local authorities who have been set up to provide low-cost, good quality
housing - which they can't do because they are deprived of money by the central
government. . . . It is a ridiculous way to earn a living, because ifI were a roof repairer, I
might actually get the whole thing done more quickly and efficiently. .. . I spend all of
my time jumping people up the queue to have their roof mended, which pushes other
people back down, but at least it's keeping the pressure on and keeping the issue alive."s
Accordingly, there are good reasons why socialists like Bankowski reject
rights as an organising principle for socialist societies and as a strategy for
political action. But, whatever may be the intrinsic merits of this position, it is
only marginally relevant to radical legal practice in the Britain of Margaret
Thatcher.
128
RADICAL PRACTICE
Most of the radical lawyers whom I interviewed would see the foregoing
discussion of the compatibility of socialist needs with a politics of rights as no
more than a mildly diverting academic exercise which is utterly irrelevant to
radical practice. In part, this is because these lawyers typically think of
themselves as oriented more to action than reflection. Much of their
satisfaction comes from the immediate benefits they win for clients. Speaking
of the early days of the law centres, one solicitor put it this way: "You get
somebody back in who's been thrown out [of a council estate]. The personal
payoff to you as the lawyer who did it is tremendous, as is the feeling of an
organisation going places."36 Moreover, their socialism is more concrete than
conceptual. Radical lawyers do not measure progress according to ideals or
even strategic goals but by whether things seem to be getting better for "those
who we feel are suffering the worst injustices"."7
These days things are not getting better. On the contrary, Britain under
Margaret Thatcher has become, it is often said, an island of private affluence
and public squalor. Polarisation is forming along other dimensions as well.
The industrial north is floundering while the south prospers, driven by finance
and high technology. Racial lines increasingly divide the society as do tensions
between the employed and a growing underclass.38 These problems pre-date
Margaret Thatcher and can be traced to a century-long decline in Britain's
industrial base. But even though Mrs Thatcher has not caused the problems,
her policies have contributed to polarisation.39
With their goals receding, it becomes even more difficult for radical lawyers
to think strategically or to dwell on elusive ideals. The law centres movement
has been the most fruitful source of such thinking in the past.40 But the
urgency of client concerns has made it very difficult even for law centre
lawyers, who are more disposed to programmatic reflection, to think beyond
the next case:
Their living conditions, jobs, and everything have become so acute that the pressures on
law centres and other agencies have got really enormous. It's all very well to say we
shouldn't be doing a lot of casework; we should be concentrating on our strategies which
in the long run will be more effective, but it's actually very, very difficult unless you - and
your management committee and the community that's directing you - are very hard-
nosed and very clear about what you are doing and why you are doing it. It's very difficult
to turn away hundreds of people banging on your door and ringing your bell every week.4 1
In short, the circumstances of radical practice in Thatcherite Britain have

forced lawyers into a defensive posture. They are too busy fighting the
contraction of welfare benefits to worry about perfecting the welfare state and
too busy deploying available rights in defence of activists embroiled in public
order conflicts to worry about the liberal-capitalist origins of those rights.
The Contraction of Welfare Benefits
The welfare state is an irresistible target - given the neo-liberal values of

Thatcherism. Ian Gough provides a two-point summary of the neo-liberal
case against the welfare state:
129
[F]irst, because it allegedly generates even higher tax levels, budget deficits, disincentives
to work and save, and a bloated class of unproductive workers. Second, because it
encourages "soft" attitudes towards crime, immigrants, the idle, the feckless, strikers, the
sexually aberrant and so forth. Economic prescriptions and populist incantations are
harnessed together, and their prime target is the expanded sphere of state responsibility,
state regulation and state-provided benefits which constitute the modern welfare state.42
Mrs Thatcher is very clear about the moral impulse behind her programme. In
her own words:
The thing about socialism is it gets more socialist, because that is the only way for it to
go . . . and people come to look more and more to the government and to lobbying the
government for their standard of living than they do to their own efforts. And at that stage
you start to go down, because democracy is self-government and the price of self-
government is self-discipline and . . . personal endeavour.43
In sum, Thatcherism expresses a rejection of the collectivist political culture

that has dominated British politics since at least the end of World War II and is
not just an instrumental reaction to the fiscal crisis of the state.
Gough points out that although Prime Minister Thatcher did not reduce
social sector spending, there has been a systematic erosion of the welfare state
during her administration. In the first place, demands on the welfare state
have simply risen much faster than funding - due in no small part to Mrs
Thatcher's economic policies which have been responsible for precipitous
increases in unemployment. Moreover, the three-pronged Thatcher response
to this distress is generally consistent with her efforts to roll back and to
harden the welfare state. The increase in social sector spending has been
inadequate to relieve the distress of the unemployed and of pensioners.
Secondly, such positive programmes as have been implemented clearly reflect
individualistic values - as, for example, shifting the emphasis from public to
private housing and from public to private pension schemes:
Drawing together the threads, we see a major attempt to reprivatise parts of the welfare
state (housing, education), higher charges on consumers (health and housing), and in
social security explicit decisions to weaken the working class [by reducing benefits to
strikers' families]."44
Finally, these policies have been accompanied by an ideological blitz which, as

Stuart Hall puts it, has invoked "the Scrounger as a popular folk-devil", thus:
?. expense
the dredgingofup the man
others, whowho
has wants something
abandoned for nothing,
the puritan ethic of the scrounger who livesand
reward-for-hard-graft at
disappeared down the hole of endless protracted pleasure - abroad. What could be more
undermining of the national character, the moral fibre of the nation?4 5s
In short, the welfare state is being doubly discredited these days through
"ideological subversion" as well as by choking off the resources which are
required for even minimally satisfactory performance.
Of course, benefit problems pre-dated Margaret Thatcher. In his 1979
Cobden Trust Human Rights Day Lecture, early in Mrs Thatcher's first
term, Stuart Hall signalled the inadequate distribution of welfare state
benefits:
130
[O]f the 5,548,000 claims for Supplementary Benefit, fraud accounts for only 0.59% of the
total. By contrast, of the two million people estimated as eligible for Supplementary
Benefits, only 60-65% take them up. In short, the really worrying problem of the Welfare
State is not the number of proven fraudulent claims, but the vast numbers who need to
exercise welfare rights in order to survive, and the significant number whom the Welfare
State, for one reason or another, does not reach.46
So, too, with "ideological subversion", a flame which Mrs Thatcher has
fanned but did not kindle.
In any event, the welfare state and its values are under direct attack with
predictable consequences for radical lawyers. Their clients are needy and
dispirited - dependent on shrinking benefits and denigrated as 'free loaders'
and 'scroungers'. This is not a setting conducive to struggle:
People who have holes in their roof are the ones who are least able to shout and have the
mildest attitudes toward authority. ... Some of my civil clients think it's a matter of
extreme shame to go into court.47
Moreover, there is an inclination among these lawyers to believe that when,

upon occasion, they gain a favourable administrative or judicial interpreta-
tion, Mrs Thatcher can simply pull the rug out from under them in Parliament.
Given the Sisyphian sense of frustration experienced by radical lawyers in
their struggle to hold the line, it is understandable that there would be little
energy for, or indeed patience with, concerns over the socialist integrity of
rights, their only weapon, and over the welfare state, the lifeline of their clients.
It all seems to boil down to a matter of putting first things first.
The Imposition of Public Order
In parallel to the contraction of welfare benefits have been coercive policies

that jeopardise more traditional liberal rights. The polarisation of the society
along race and class lines has led to despair and desperation at the bottom and
to assertive self-righteousness at the top. As a "highly respected Tory with a
safe seat in one of the shires" put it to John Newhouse of The New Yorker
Magazine:
The country is split down the middle. My people are scared. When they see the violence
and rioting on TV and the unemployment queues, I can see the fear in their eyes. They are
afraid it will spread. The miners' strike couldn't have occurred anywhere else in Europe.
Nowhere else is there a sense of a huge, unbridgeable gap between a large part of the
country and its cultural and political l61ite in the capital - between masses of people and
their own institutions. Many of these people are dreadfully uneducated and uneducable.
?. And Mrs Thatcher - a product of the lower middle class - doesn't approve of them
and doesn't like them, either.48
The resultant racial and industrial conflicts have spawned escalating civil
violence - typified by the Brixton disorders of 1981 and the miners' strike of
1984 - and aggressive police tactics that disregard established rights, thereby
further alienating racial minorities and working class militants.
The Thatcher response to all of this has been to invoke law and order
rhetoric and policies:
131
[T]he more freedom you get and the more prosperity you get, the greater the opportunities
for evil you get and that is what we are experiencing now. You can not leave it to
government alone . . . to keep law and order. .... Each and every person has to be
involved. You have to be prepared to take precautions against it, so that you don't make it
easy to rob your house, your shop, your car. .. . I have got more police. .. . They have
got better training. .. . They have got better equipment. .. . They are better deployed.
. We simply can not do without every family keeping control over their young people;
every teacher teaching . . "If this person has done wrong, we will not shield him. He
must go before the courts and be punished." You have to mobilize everything.49
Accordingly, Mrs Thatcher's legislative response to industrial strife has been,

as Anthony King points out, "three separate union curbing laws . . . each
with more stringent provisions than the one before".5s The criminal justice
policies of the Thatcher government have had the same law and order bias -
increasing the powers of police and restricting the rights of defendants. 1 And
one of the reasons that it has been difficult to rein in public expenditure is that,
as Mrs Thatcher indicates above, she has been generous in funding the
police."2
All of these efforts seem to have been futile - even counter-productive - as
The Guardian explains in a leader on the Conservatives' low-key stand on
crime at the 1986 party conference:
The Tories realise, very uneasily, that the policies which they have pursued so forcefully
and undeviatingly on law and order throughout seven years of Government have failed.
The party of law and order has presided over record crime rates and over spectacular
increases in the fear of crime. The constant strengthening of the police has failed to stop
those trends and may in some respects even have contributed to them.53
To make matters worse, policing practices have contributed to violence -

particularly the racial violence on council estates. Lord Scarman's report on
the Brixton riots singles out "racial prejudice", "hard policing", and
"harassment" as contributory factors.54 Robert Reiner quotes directly
from the Scarman Report in his own assessment of the police role in racial
violence:
The hostility and suspicion of blacks towards the police was fanned by harassment,
misconduct and the "ill-considered, immature and racially prejudiced actions of some
officers". But above all it was aggravated by "unimaginative and iniflexible tactics", in
particular stop-and-search sweeps which antagonised the very many innocent people wh6
fell victim to these. These operations culminated in the notorious 'Swamp '81' which was
the immediate trigger for the riots, a classic illustration of law enforcement at the expense
of the maintenance of public tranquility.s s
All of this adds up to a kind of spiral of violence with policing practices

generating anger and the subsequent breaches of public order leading to still
more threatening police practices. Perhaps the central development is the
growth of a national network of paramilitary police units anchored in the
Metropolitan Police Special Patrol Group. Reiner traces the Special Patrol
Group back to 1965 and the national network to a 1972 industrial dispute, but
he also argues that the pace of militarisation has clearly picked up during the
1980s:
132
Since the police failure to contain the 1980 Bristol riots and their lack of success in
preventing widespread damage and police injuries in the 1981 Brixton, Toxteth and other
disorders, police preparation for riot control has redoubled. ... During the riots
themselves, of course, there was an evident intensification of police tactics, notably the
first use of CS gas in riot control in mainland Britain, and high-speed driving of police
vehicles to disperse crowds. Both tactics resulted in severe injuries, and the death of David
Moore, a disabled bystander who was run down by a police vehicle.56
These 'third force' paramilitary units, which have become an accepted feature
of British policing, obviously pose a substantial threat to traditional civil
liberties.
In one sense, the implications of all this for radical lawyers are clear enough.
The public order activities of the state, like the welfare cuts, put pressure on the
classes with whom radical lawyers identify, and at least their threshold task is
to provide immediate assistance "for people who are about to fall over the
precipice unless something is done".3' At first glance, this would seem to be
the same kind of 'first aid' strategy forced upon lawyers by the welfare state
cuts. But even if this were true there would be a significant difference. A
barrister working principally in public order cases put it this way:
I think broadly the greatest satisfactions come from the jury system. I think it is absolutely
remarkable that our society has maintained this form of popular participation in serious
decision-making. It means that the state cannot get away with all kinds of oppressive
prosecution which otherwise would be routine.58
A solicitor, working in the related area of police harassment, also believes that
she is making progress:
It's something that slowly people are realising, that if they are assaulted by the police then
that's probably a crime, but it's also actionable if they were in custody longer than they
should have been. If they are prosecuted when they shouldn't have been, it's the same.
People are realising that there are remedies against the police. In form they are exactly the
same as remedies against anybody else who has assaulted them. .. . And I think that is
tremendously important, for those individuals . . . but it's also important that there is
some sort of check on the police."59
In other words, in these cases lawyers have traditional legal rights at their dis-
posal and, therefore, can be reasonably optimistic about winning their cases.
But these kinds of work provide other satisfactions. Even ordinary criminal
practice can, for example, offer a more 'up-beat' setting than the welfare law
practice. Consider the contrast drawn by one radical solicitor between her
criminal clients and tenants on council estates:
Whereas tenants are completely crushed and at the bottom of the heap . . . the criminal
clients are all of them trying to make their way up some kind of ladder . . . they have
ambitions, wishes, desires and think they can fulfill them even if they don't do it legally.s0
Then there are the broader gratifications of public order cases which are
conducted in the spotlight, involve long trials with opportunities for
advocacy, and often mean working with assertive defendants, and arousing
community and/or trade union militants. Consequently, lawyers can easily
become public figures with enhanced career opportunities in law and politics.
One solicitor, now in Parliament, outlined this progression:
133
My reputation was made as a lawyer. I became a public figure as a result of the law, not as a
result of politics. That came later. .. . In the mid-1970s I was a founding member of a
black community-led campaign - indeed of women in the main, mothers, community
workers and some young defendants - to change the criminal law. That campaign
attracted enormous publicity and it reflected my own experience in the law. .. . And as a
result of that I came very much into the public eye - television and radio and all the rest.
And one attracted a number of clients who were people of significance in terms of public
attention on them and one began to act for a number of groups which became significant.
So that was something. It gave me a high profile.6'
More generally, radical lawyers feel that they can seize the initiative in such
cases by "highlighting oppression by the state" in the courtroom - and
through press reporting to "the public at large".62
But they assess their capacity to heighten public consciousness soberly:
It would be unrealistic to say that there is anything other than a marginal continuation
once the trial is over. .. . One should never underestimate the enormous and quite
understandable tendency - once you have been a defendant, or a family of a defendant in a
major trial, and you have succeeded - to forget the whole thing. It's been the most
terrifying and unpleasant experience in your life, and the last thing you want to do is go on
living it.63
Of course, it's forgotten in a year, I daresay, but it is part of the tradition and history of
cases and certain journalists remember, so when they report something, they say it's
similar to the case of so-and-so, so then people have their memories jogged. So it actually
does get lodged into the public consciousness.64
There is also a sense that the opportunities for effectively reaching the public
are declining:
The scope for it happening is rapidly decreasing in the sense that we have a political climate
now, and it obviously affects the judicial climate, which is closing down avenues in terms
of dissent, in terms of people's and community rights to self-determination. It's becoming
a much more closed society and therefore the opportunity for making breakthroughs and
the opportunity for creative law now is rapidly diminishing.65
With all that said, public order cases are anchored firmly in the practices and
culture of traditional rights and, thus, afford opportunities not readily
available with respect to the welfare state.
CONCLUSIONS
In fundamental ways Thatcherism threatens both the collectivist values of the

welfare state and the individualist values of the liberal state. The neo-
liberalism of Thatcherism discredits welfare rights - thus providing a moral
rationale for the callous reduction of welfare benefits. There is also a coercive
side to Thatcherism which puts traditional bourgeois political and legal rights
at risk. Having contributed to the alienation of the 'have-nots', Thatcherism
invokes police state methods as the only way to deal with an "ungovernable"
society.66 This is not unlike the tale of the boy who murders his parents and
then as an orphan throws himself on the mercy of the court. The net result is
the social and legal exclusion of significant segments of the society from
134
universalist conceptions of citizenship. Thatcherism is, in short, driving
British political culture and political practice ever further away from socialist
ideals.
In setting themselves against Thatcherism, it is, therefore, reasonable to
think of radical lawyers as working on behalf of socialist values - albeit in an
adhoc rather than a programmatic fashion. But this is, in any case, the style of
radical lawyers. They approach socialism as activists, not as social theorists.
Speaking of his conversion to socialism by way of legal practice, one barrister
put it this way:
At the beginning, I think I just had a political awareness, but I wasn't involved; I wasn't
committed particularly. But in fact the process of being at the Bar and watching what
happened at the courts politicised me. ... The courts actually highlighted that there was
a class that ended up in the dock, and there was a class that prosecuted, and they were poles
apart. And the police officers again were another class of people who really had an axe to
grind.67
Class is, in other words, a descriptive rather than an analytic category - a label
for characterising oppression rather than a tool for detecting and under-
standing it. This same pragmatic frame of mind accounts for an acceptance of
rights, not only as weapons but also as objectives for welfare recipients,
political activists, and victims of police harassment. Rights are both the only
weapon at the disposal of radical lawyers and, in a common-sense way, an
'obvious' step in the right direction for the disadvantaged and the dis-
possessed.
No doubt this pragmatism could, expecially in the long run, lead radical
lawyers astray in different ways. 'Collective' rights tend, in the first place, to
generate pluralist competition rather than solidarity within the working and
underclasses. Moreover, since rights are, in any case, more useful to assertive
middle-class people with ready access to legal resources, there is reason to be
sceptical about rights as a way of empowering those most in need of help.68
Accordingly, a politics of rights, whatever its immediate benefits, may
reinforce class differentials. Similarly, a preoccupation with rights may well
lead radical lawyers to underestimate the public's obsession with law and
order.69 The result may be a tendency to overestimate the willingness of the
public to respond to the injustice of coercive and paramilitary policing. In
other words, confrontations with the police are as likely to reinforce as to
erode the prevailing hegemony.70 There is also reason to believe that rights
often turn out to be empty promises - particularly when they go beyond
individual to 'collective' entitlements with broad public policy implications.7'
With all that said, it would be wrong to exaggerate the immediate threat
posed to socialist values by an emphasis on rights. In so far as the substantive
rights being pursued are consistent with socialist patterns of redistribution, at
least to that extent such campaigns are steps in the right direction. Moreover,
while 'collective' rights may jeopardise solidarity in the long run, they can be
seen as a transitional resource for challenging existing patterns of distribution
and, under the right circumstances, for political mobilisation.72 Nor should it
be seen as the responsibility of the oppressed to utilise only strategies which
135
contribute to the solution of problems by which they are victimised. It is
sufficient that their strategies generate some pressure on the state to come to
terms with the problems. The individualistic values and pluralist forms
inherent in a politics of rights are a cost but perhaps a necessary one in a liberal
capitalist setting. In any case, socialist rights are neither more nor less
contradictory than radical lawyers themselves. Such contradictions as there
may be mean that rights, like the welfare state itself, can be reasonably seen as
a useful, but problematic, arena for struggle.
NOTES AND REFERENCES
1 On the hegemonic character of rights, see summaries by T. Campbell, The Left andRights: A
Conceptual Analysis of the Idea of Socialist Rights (1983) pp. 2-4; E. Sparer, "Fundamental
Human Rights, Legal Entitlements, and the Social Struggle: A Friendly Critique of the
Critical Legal Studies Movement" (1984) 36 Stanford Law Rev. p. 509 at pp. 520-1;
E. M. Schneider, "The Dialectic of Rights and Politics: Perspectives from the Women's
Movement" (1986)61 New York University Law Rev. p. 589 at pp. 593-8. On rights as empty
promises, see M. Galanter, "Why the 'Haves' Come Out Ahead: Speculation on the Limits
of Legal Change" (1974) 9 Law and Society Rev. p. 95; J. Handler, Social Movements and the
Legal System: A Theory of Law Reform and Social Change (1978); S. Scheingold, Politics of
Rights: Lawyers, Litigation and Public Policy (1974).
2 J. Katz, Poor People's Lawyers in Transition (1982) pp. 179-96.
3 In common usage, the term 'radical lawyer' seems to be reserved for barristers. See, for
example, "Other in Law", Observer Colour Magazine, 16 November 1986.
4 Interview, 16 December 1986.
5 Interview, 15 January 1987.
6 A. Gramsci, Selections from the Prison Notebooks (1983) pp. 5-14. See also M. Cain, "The
General Practice Lawyer and the Client: Towards a Radical Conception" in The Sociology
of the Professionals: Lawyers, Doctors, and Others (1983; eds. R. Dingwall and P. Lewis)
pp. 106-30.
7 S. Hall and B. Schwarz, "State and Society, 1880- 1930" in Crises in the British State 1880-
1930 (1985; eds. M. Langan and B. Schwarz) p. 21. See also S. Hall, "The Rise of the
Representative/Interventionist State" in State and Society in Contemporary Britain: A
Critical Introduction (1984; eds. G. McLennan et al.).
8 Hall and Schwarz, op. cit., n. 7, p. 19.
9 id.,p. 20.
10 C. Offe, Contradictions of the Welfare State (1984) pp. 155-6.
11 J. O'Connor, The Fiscal Crisis of the State (1973).
12 S. Hall, Drifting into a Law and Order Society (1979) pp. 5-6.
13 Offe, op. cit., n. 10, pp. 164-5.
15 H. Dean, Legal Dis-Service: A Critical Appraisal of Legal Service Provision and Proposals
for an Alternative Approach (1985) Brunel Occasional Papers in Law, No. 2, pp. 49-50.
16 id., p. 47.
17 id.
18 Scheingold, op. cit., n. 1.
19 E. P. Thompson, Whigs and Hunters: The Origin of the Black Act (1975) pp. 158-269;
A. Hunt, "The Politics of Law and Justice" (1981) 4 Politics and Power p. 3.
20 Campbell, op. cit., n. 1, chs. 8-10.
21 id. p. 197.
22 N. Rose, "Unreasonable Rights: Mental Illness and the Limits of the Law" (1985) 12
J. Law and Society p. 199 at p. 213. For an alternative view, see E. Schneider, op. cit., n. 1,
pp. 610-23.
136
23 Campbell, op. cit., n. 1, p. 142.
24 id., p. 143.
25 id., p. 183.
26 id., p. 180.
27 id., p. 195 (emphasis added).
28 id., p. 144.
29 id., p. 195.
30 id., p. 202.
31 W. Sadurski, "Comments on the 'Socialist Concept of Rights' by T. D. Campbell" (1982)
23 Bull. of the Australian Society of Legal Philosophy p. 105 at p. 110. For Sadurski,
Campbell's adaptation of rights to an idealised socialist society is beside the point. "A
society that ex hypothesiexcludes such a conflict is, so to say, too good to have rights. Rights
provide protection but in a society of angels protection is unnecessary. Rights are useful in
imperfect societies, they offer second-best solutions, they protect us against catastrophe."
32 Z. Bankowski, "Law Left Right Behind" (1984) 7 University of New South Wales Law J.
p. 362 at p. 368.
33 Dean, op. cit., n. 15, p. 47.
34 above, n. 22.
36 Interview, 20 November 1986.
38 Many of these developments are detailed in a 1987 report by the Child Poverty Action
Group discussed at length in The Guardian. For example, "The top fifth of wage earners
have seen their real salaries increase by 22 per cent since 1979, while families with real
incomes in the bottom tenth suffered a cut of nearly 10 per cent." Or, "In the Northern
region, male earnings have fallen by 9 per cent relative to the South-east and the proportion
of men on low wages has doubled." See "Tougher Struggle for Poor as Real Income Falls"
The Guardian Weekly, 14 June 1987. It is also reported in the same issue that, "Since 1979 the
proportion earning below the Council of Europe's 'decency threshold' has increased from 36
per cent to over 42 per cent." See "Economic Growth - for the Benefit of the Rich", id.
39 See the report on research by Professor A. H. Halsey, "Two Nations Gap Widens", The
Guardian, 29 January 1987.
40 See C. Grace and P. Lefevre, "Draining the Swamp" (1985) 7 Law and Policy p. 97.
41 Interview, 25 February 1987.
42 I. Gough, "Thatcherism and the Welfare State" in The Politics of Thatcherism (1983; eds.
S. Hall and M. Jacques) p. 154.
43 "Profile: The Gamefish" The New Yorker Magazine, 10 February 1986.
44 Gough, op. cit., n. 42, p. 153.
45 S. Hall, op. cit., n. 12, p. 6.
46 id.
48 op. cit., n. 43, p. 72.
49 id.,p. 71.
50 "The three [laws] have outlawed political strikes and sympathy strikes, virtually outlawed
secondary picketing, strictly limited the picketing that remains legal, restricted the closed
shop, required unions to hold secret ballots of their members before calling strikes and for
election of union executives and - perhaps most important - severely restricted the unions'
historic immunities from legal action in the courts, with unions now being liable in law for
many of the actions of their shop stewards and individual officials." See unpublished paper
by A. King, "What Thatcher Has Done to Beer: Margaret Thatcher and the British Political
System", presented at the Annual Meeting of the American Political Science Association,
Washington, August 1986. See also R. Baldwin, "Criminal Law and Community Life"
Legal Action Group Bull. January 1986, pp. 5-6.
51 Among the policies supported by the Thatcher government are: prosecution powers to seek
review for "unduly lenient" sentences ("New Attempt to Review 'Lenient' Sentences" The
Guardian, 8 November 1986); abolition of the defendant's right to peremptory challenges of
137
jurors ("A Bill to be Challenged" The Guardian, 17 November 1986); and increasing the
length of time that a suspect can be held for questioning on "serious" offences to niney-six
hours (R. Reiner, "Is Britain Turning into a Police State?" New Society, 2 August 1984,
pp. 52-4).
52 King, op. cit., n. 50, p. 8.
53 "Crime and a Cul de Sac", The Guardian, 9 October 1986.
54 Lord Scarman, The Scarman Report: The Brixton Disorders, 10-12 April 1981 (1982)
pp. 105-118.
55 R. Reiner, The Politics of the Police (1985) p. 200.
56 id.,p. 71.
58 id.
59 Interview, 26 February 1987.
66 Hall, op. cit., n. 12, p. 3.
68 K. Bumiller, The Civil Rights Society (forthcoming); R. Abel, "Lawyers and the Power to
Change" (1985) 7 Law and Policy p. 5. But see also R. Delgado, "The Ethereal Scholar:
Does Critical Legal Studies Have What Minorities Want?" (1987) 22 Harvard Civil Liberties
Law Rev. p. 301.
69 S. Hall et al., Policing the Crisis: Mugging, the State, and Law and Order (1979);
S. Scheingold, The Politics of Law and Order: Street Crime and Public Policy (1984)
pp. 59-91.
70 For an interesting analysis of fundamental attractions of law and order, see R. Dahrendorf,
Law and Order (1985).
71 See J. Handler, op. cit., n. 1; S. Scheingold, op. cit., n. 1.
72 For an analysis of the politicisation of rights on behalf of the women's movement in the
United States of America, see Schneider, op. cit., n. 1.
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Cardiff University

Radical Lawyers and Socialist Ideals

VOLUME 15, NUMBER I, SPRING 1988

Radical Lawyers and Socialist Ideals

*Department of Political Science, The University of Washington, Seattle,

Individualism generated pressures for dispensing benefits in a grudging

Accordingly, the welfare state is probably best thought of as an arena for

In short, the circumstances of radical practice in Thatcherite Britain have

The Contraction of Welfare Benefits

The welfare state is an irresistible target - given the neo-liberal values of

In sum, Thatcherism expresses a rejection of the collectivist political culture

Finally, these policies have been accompanied by an ideological blitz which, as

Moreover, there is an inclination among these lawyers to believe that when,

The Imposition of Public Order

In parallel to the contraction of welfare benefits have been coercive policies

Accordingly, Mrs Thatcher's legislative response to industrial strife has been,

To make matters worse, policing practices have contributed to violence -

All of this adds up to a kind of spiral of violence with policing practices

In fundamental ways Thatcherism threatens both the collectivist values of the

NOTES AND REFERENCES

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