What the Legal Profession Can Learn From Liberation Theology

Liberation theology will always remain, at least, fundamentally and spatially, a third world theology. As world-renowned liberation theologian Gustavo Gutiérrez puts it, the principal occupation of theologians in the third world is not to prove that God exists but to show why God exists in the midst of so much suffering. I repurpose this task with respect to the legal profession and assert that the principal occupation of the legal profession in the third world is not to prove the existence of law (or its basis or whether or not there is a Grundnorm and questions of that nature). Rather, why does law exist in the midst of so much suffering? What is the relationship between law and development? How does a commitment to law and development lead to personalized wellness, communal integrity and a more equitable world? These are the tough questions we must ask and answer.

There is an uncanny similarity between legalism and clericalism. Legalism emphasizes law to the exclusion of everything else. Law is the foundation of life itself and everything that exist must align with the will of the law. Fiat Justitia ruat cealum – let justice be done though the heavens fall. Legalism is idolatry. Even justice has no independent value – no content. It shares the same linguistic tinge as law. Blind obedience to the law is justice: a splash of grey on a marbled statue - a blindfolded woman with a sword in one hand and a pair of scales in the other. Justice is blind.

So it is with clericalism that replaces the Cross with Church and replaces ministry with ecclesial careerism. The minister becomes more than the representative of God and the church becomes a palace of exclusion and obscenities that Christ would not recognize either during his time or in this day. As liberation theology challenges ecclesial institutions of power and their monopoly over doctrine and ecclesial direction, so must liberation theology challenge legal institutions in respect of the way legal institutions approach and treat subjects of law – subjects of law being human beings.

Legal institutions must acknowledge, first and foremost, that all persons cannot be equal before the law; that some persons belong to – in Pope Francis’ words – the existential peripheries. Adjudicatory bodies will always encounter many of Victor Hugo’s ‘Jean Valjean’ – people who will steal bread to save their sister’s children. In these relatively complex intercourses of legal institutions and persons with hopes in the ICU, adjudicatory bodies must muster the courage to meet the unspoken challenge – principles of humanism should persevere.

Liberation theology teaches us other things too. It teaches us about the meaning of exclusion and how we are often blind to it. Liberation theology arguably began with the immorality of the suffering and the insensitivity of a theology that emphasizes the transcendence rather than the immanence of God. In other words, poverty - especially poverty caused by unregulated capitalism, supported by an inordinate fetishism for civil and political rights and an insincere commitment to equality and material sufficiency - is immoral. However, liberation theology is not about poor people alone. Black liberation theology taught us that exclusion goes beyond a persons’ economic state. The color of one’s skin could always be the basis of exclusion; of being less human. Feminist and womanist liberation theologians tell us more. They allow us to pay attention not just to how our actions can draw exclusionary lines but how our words can subconsciously erase others through interpretative discourses drawn from the lens of a prevailing majority. If women are human beings and human beings are spitting images of God, why is God male? What are the socio-political dimensions of perceiving God as male? Liberation theology demands from us an answer. From liberation theology, lawyers can learn to pay attention not just to what is said or done. Lawyers can learn to identify express and implied barriers of exclusion and how, in the making or application of law, the controlling question should be: how will this affect those who are worse off? Lawmaking and application are functions of power and understanding the impact of laws on people depend on how well we recognize indicators of exclusion and make conscious efforts to tackle subliminal biases.

Liberation theology also teaches us something very important about building law from the ground up. Liberation theology arguably did not emerge from the commitments made at Puebla and Medellin. Liberation theology emerged from the collective experiences of people in base ecclesial communities - comunidade eclesial de base - where participants would re-interpret scripture to fit their suffering contexts. Variants of liberation theology have preserved this personal and collective approach towards contextualizing scripture and making it instrumental enough to speak to one’s ‘helpless’ estate. In this way, there is a constant conversation between scripture and experience. The legal profession in the third world can learn, most importantly, what it means to make, apply and interpret law not from the outside but from the inside; not from the height above but from the ground below. This should be THE commitment to law because it is the right thing to do, and not because Lord Denning has somewhere stated that the common law must be interpreted according to local circumstances.

At the center of it, liberation theology opens new vistas that help us encourage new and refreshing perspectives concerning the commitment to justice. James Cone, in The Cross and the Lynching Tree commenting on the strong link between black suffering and the suffering of Jesus asks and answers, ‘what is the meaning of this unspeakable suffering…that words cannot begin to describe it? only the song, dance and the shout – voices raise to heaven and bodies swaying from side to side – can express both the wretchedness and the transcendent spirit of empowerment that kept blacks from going under as they struggled against great odds to acknowledge humanity denied’. In short, the black church was and continues to be vocally militant and stubbornly heretic in the way in which it re-interpreted scripture and claimed God and a black Jesus or like womanist liberation theologians will do, ‘Black suffering brother Jesus’ for itself. Other variants of liberation theologies have endured decades of institutional oppression by the very institutions to which these liberation theologians belong. Catholic liberation theologians who have used Marxist analysis to reveal what raw power is have been ‘called to order' by the church on the basis that Marxist analysis inevitable leads to the rejection of God. A claim, these liberation theologians disclaim. For the legal profession, liberation theology teaches us to be outrageous in our demands for justice. The profession, which is very close to raw power (political, social and economic) must make claims to institutions wherever and whenever. Importantly though, the profession at all levels (bar, bench, academia) must work towards ensuring that pathways that facilitate justice are continuously open. Rights – speech, conscience, procession, assembly. This is what I mean.

In concluding, I say liberation theology must and should give us enough lucidity to see injustice clearly and without equivocation. Olaudah Equiano, an ex-slave, writing many centuries ago in his autobiography was filled with this kind of lucidity when he condemned a West Indies law that did not criminalize the unintentional killing of a black man/slave but subjected the intentional killing of a black man/slave to a fine of 15 pounds. He stated: ‘Is not this one of the many acts of the island which call loudly for redress? And do not the assembly which enacted it deserve the appellation of savages and brutes rather than Christians and men? It is an act at once unmerciful, unjust and unwise, which for cruelty would disgrace an assembly of those who are called barbarians…

This is what liberation theology demands of the legal profession: call out injustice and condemn it in ways others like Olaudah have done. It is the right thing to do.