Before the Law (School)
What is the role of legal education, what does it mean to learn the law? The law teacher’s first duty is to understand and teach the language of justice, the breath, spirit and equity that should move the body of law. A law without justice is dead letter, body without soul, remnants and ruins of an honourable tradition. A law (nomos) worthy of the name nemei and katanemei, distributes and separates. But it does so by placing the requirements of absent justice and ideal equity above the demands of power and abuses of wealth. Justice departs when the law does not meet its own self-professed criteria but much more when the whole law (and its teaching) does not account itself to the altar of justice. It should not be necessary to remind this to the children of Antigone.
Our law courts are adorned with a blind-folded Justitia (the role of the blindfold is to stop her from seeing the concrete characteristics of the person who comes to the law by placing the abstract logic of the institution above the warm glow of justice). The law school on the other hand has at its pules(gates) a wide-eyed dike who looks the other in the face and promises infinite justice. Those who forget this when they teach and practice law become functionaries and accountants of power, not leitourgoi tou kratos dikaiou but servants tou kratous. The distance between the state and the state of law (rechtstaat, rule of law) is always small but when justice exits the law state and law become identical, law the language of a power-crazed sovereign.
But what is justice? We are surrounded by injustice but we don’t often know where justice lies. The most painful witness of our time is the widely-felt belief that justice has miscarried. It has been aborted in the IMF measures and the Athens ghettos, in the unemployed and the salary cuts for the low-paid and pensioners, in the treatment of the refugees in the camps in the Greco-Turkish borders and the wall built to keep the poor out and the Greeks in. its violent miscarriage is evidenced by the recent decision of the European court of human rights according to which sending refugees back to Greece amounts to torture, inhuman and degrading treatment because of their inhuman living and detention conditions and because Greece virtually never gives political asylum to refugees. Belgium which was condemned for taking Greece as a humane place and sending back an Afghan refugee and the other Europeans will henceforth deal with the Greek government as it deserves: the violator of the basic dignity of the wretched of the earth. There is no a-sylum (lack of violence, absence of abuse) in Greece, the refugees and the immigrants are violated. The University asylum offers a small compensation for this much greater violence.
Justice is miscarried when the Law and University Professors attempt to ‘empty’ the law school from the hunger strikers who took to sleeping there. The emptying of the strikers is the emptying of justice from the house of law. What do the people in the Law School want? To make us take notice of their meagre, poor insignificant existence, to ask for basic labour protections and minimum living conditions. The minimum recognition that they live here, work here but have a worst treatment than convicts on chain gangs. They are just saying ‘we the invisible, the uncounted and undocumented are next to you and part of what you are and what you are becoming.’ They are people punished not for what they have done (criminality or illegality) but for who they are, not for their evil but for their abject innocence. The Greek sans papiers are homines sacri, persons who as legally non-existent and they are non-persons and can be treated in the most cruel way by the state or individuals, employers, landlords or the screaming minority in the street.
We will hear of course that Greece is a human rights country. We teach our constitution and rights in the Law School, we have human rights organisations, societies, intellectuals, ministries, ombudsmen and institutions who promote them. They keep telling us that human rights belong to humans on account of their humanity and not of a narrower membership such as nation, state or group. This is a comforting thought. But when we look at the law school immigrants, these claims appear as one of these paradoxical half-truths that litter our ideology. Protesting against the worst abuses today in Greece, asking to be seen, heard and acknowledged in a minimum way, even if they need to go to death for that, is the greatest service that these people offer to law and the law-school. They are putting professors and students face to face with what they should be teaching and learning but so many times are not. Their sacrifice (sacer facere) will be a making sacred, a bridging of law and the teaching of law with that sense of infinite justice and hospitality, of which we can never say ‘here it is’ ‘we have served it’ ‘now the world is good’.
If they are ‘emptied’ from the house of law, the law which for these few hours and days has been filled with the idea of justice or, rather the protest against absolute injustice, we will not deserve again to teach law there or to pretend that our law and teaching has anything to do with justice.
Costas Douzinas is Professor of Law and Director of the Birkbeck Institute for the Humanities, University of London