Judge Dennis Davis
Gandhi: The Lawyer and Passive Resistance
Judge Dennis Davis | Gandhi: The Lawyer and Passive Resistance
- Good afternoon, good evening, or good morning to everybody from a freezing, wet Cape Town. Hope the weather wherever you are is far better than where I am, which is quite dire. But there we are. And today, this is the third of the lectures that I’m giving on questions of lawyers who’ve changed the world or certainly made a very significant difference to the society in which they’re in, and perhaps even more than that. There will be some others who will follow, but just to refresh your memory, we started off a couple of weeks ago talking about Abraham Lincoln, and then we followed with a lecture on Thurgood Marshall. The two, if you want to put them together, what is so significant about Lincoln insofar as the law is concerned? And Marshall, of course, who is a renowned supreme court justice, as I articulated in the last lecture, was this. That here were two people who understood that law was just more than just the formal paper on which it was written. Law was not just, as it were, a series of rules abstracted from any conception of morality. In Lincoln’s case, as I indicated, in his early life as a lawyer, he really did some natural law, as I tried to expand it last time round, natural law, which has the requirement that law must not just be formally passed but must have some basic moral content to it, was central to American society going forward, central to the project of constitutional democracy which America had begun to initiate in the 18th century. And in many ways, he paid with his life for it.
And I tried to describe just how important Lincoln’s adherence to the dignity of all human beings and his understanding that law had to promote citizenship of all was vital to understanding his career. In the case of Marshall, what was particularly important in the lecture I gave was just the extent to which Thurgood Marshall had pursued the idea of the Constitution placed in its best possible light, that is a light which ultimately was there to ensure that each and every citizen, no matter their race, specifically when his is concerned, because of the racist nature of American society which confronted him on a day-to-day basis, could be used to shatter those particular restrictions of race and to ensure citizenship for Black African Americans in a manner which, in Marshall’s view, was congruent with the constitutional commitments. And in that sense, you could argue that he had continued the work that Lincoln had initiated 100 years earlier. Now we come to Gandhi, and I’m not going to talk about Gandhi in terms of his entire career. That would be ridiculous to try to capture all of Gandhi’s record in a lecture of less than an hour. But with all the lectures I give, there is one particular, the lecture’s focused on one particular theme, because that’s all you can do in the lecture, it seems to me. And the theme here, which piggybacks off the earlier versions of the lectures I’ve given on Lincoln and Marshall, is the extent to which Gandhi also believed that law was more than just the question of its formal content, and where law was actually at war with a concept of morality which respected the dignity of all. Then for Gandhi, that was a significant problem.
His entire career was based on how you deal with that particular problem, whether it be in South Africa, where he was for over 20 years, or whether it be in India, where he fought tenaciously for independence from the British for India. And so, if you really want to understand this component of Gandhi, the question is what do you do when faced with evil laws? What do you do when you’re faced with laws which restrict the rights, inalienable rights of very significant parts of humankind? And we shall see how Gandhi responded to this. Because I come from South Africa, I’d like to end the lecture by reference to two South African lawyers. One, of course, who became a president of South Africa, Nelson Mandela, of whom a lot has been spoken in his “Lockdown University” lectures, and the other, probably far less so, which was Bram Fischer. He was the most remarkable man, and of whom I shall say a few words towards the end of this lecture. Let me make one other preliminary remark. In order to, as it were, enrich these lectures, I’ve drawn on three clips which come from the very famous 1982 film directed by Richard Attenborough, and in which Ben Kingsley played the part of Gandhi, called “Gandhi.” As you’ll recall, it was made in ‘82, it won eight Oscars, including the Oscar for Best Picture and Best Actor. And the three clips I’ve chosen from this film have been designed to illustrate points that I wish to make along the way on the lecture. So, with that in mind, let’s turn a little bit to the biography of Gandhi and focus our attention on that which I have thought to outline in my introduction. Mohandas Karamchand Gandhi was born to a Hindu family on the 2nd of October 1869 in Porbandar, Gujarat, India.
He was the last child of Karamchand Gandhi, his father, and his father’s fourth wife. His father was a lawyer and an important government official, belonged to the merchant class. In many ways, he played the role of a prime minister to their local ruler. At 13, Gandhi was married, and within a short space of time, he had four sons. In September 1888, he set sail for England to pursue a degree in law, leaving behind his son Harilal, then a few months old. He spent three years in London, was a very serious student. As you’d expect, he lived a very simple lifestyle, became deeply interested in vegetarianism, study of various religions. And at this time, it appears that he also showed a considerable interest in philosophical texts, particularly those of Leo Tolstoy, John Ruskin, and Henry David Thoreau. He successfully completed his degree at the Inner Temple and was called to the bar on the 10th of June 1891, enrolled in the High Court of London, but later that year he left for India. That did not turn out well for Gandhi. For the next two years, whilst he attempted to practise law in India, establishing himself in the legal profession in Bombay, it did appear from the texts that I’ve read that a lack of self-confidence, interestingly enough, and his own lack of knowledge of Indian law, as opposed to British law, had a considerable effect on his practise, and he returned somewhat bleakly to his home in Porbandar. Whilst he was there, contemplating what he was to do next, a representative of an Indian business family situated in Transvaal, South Africa, offered him employment. He was asked to work for a period of 12 months as a lawyer there for a fee of 105 pounds at the time, roundabout close to 20,000 pounds today. He arrives in Durban in 1893, as I indicated, to serve as legal counsel to a merchant by the name of Dada Abdulla.
In June, Dada Abdulla asked him to undertake a rail trip to Pretoria, a journey which Gandhi took Gandhi first went to Pietermaritzburg. There, he was seated in a first-class compartment, as he purchased a first-class ticket. A white person entered the compartment horrified to see an Indian in the white compartment, ordered Gandhi to remove himself to the van compartment, because, as the white racist said, “Coolies are not able to sit in first-class compartments.” I’m, of course, using that word in inverted commas, obviously. Gandhi protested, produced his ticket, but was warned that he would be forcibly removed if he did not make a gracious exit. The first clip that I show from Gandhi’s film luminously illustrates exactly what happened, and we can show that now.
Tell me, do you think about hell? No, neither do I. But, but this man here is a Christian, and he’s written that in order to believe-
[Conductor] What? Where?
Excuse me, sir, how long have you been in South Africa?
A, a week.
I don’t know how you got a ticket.
Just what are you doing in this cart, coolie?
I, I have a ticket. A first-class ticket.
How did you get hold of it?
I sent for it in the post. I’m an attorney, and I didn’t have time for-
There are no coloured attorneys in South Africa. Go and sit where you belong.
I’ll take your luggage back, sir.
No, no, no, just a moment, please. You see, Mohandas K. Gandhi, attorney at law. I’m on my way to Pretoria to conduct a case for an Indian trading firm.
Didn’t you hear me? There are no coloured attorneys in South Africa.
Sir, I was called to the bar in London and enrolled at the High Court of Chancery. I am, therefore, an attorney, and since I am in your eyes coloured, I think we can deduce that there is at least one coloured attorney in South Africa.
Smart bloody Kaffir. Throw him out.
Just move your black ass back to third class, or I’ll have you thrown off at the next station.
But I always go first class! I’ve travelled over-
Thank you. Thanks, we can stop that. That was an absolute fair depiction of exactly what happened. In his own autobiography, Gandhi wrote as follows: “It was winter, and the cold was extremely bitter. My overcoat was in my luggage, but I did not dare to ask for it, lest I should be insulted again. So, I sat and shivered. He said he began to think of his duty, ought he to stay and fight for his rights, or should he return to India? His own hardship was superficial, only a symptom of the deep disease of colour prejudice,” he wrote. The next evening, he did continue the train, this time without being thrown off. But on the journey from Charlestown to Johannesburg, which had to be covered by stagecoach, he was made to sit with the coachman on the box outside, whilst the white conductor sat inside with the white passenger. He pocketed the insult for fear of missing the coach altogether. On the way, the conductor wanted to smoke, spread a piece of dirty sackcloth on the footboard, and ordered Gandhi to sit there so that the conductor could have Gandhi’s seat and smoke. Gandhi refused. The conductor swore and rained blows on him, trying to throw him down. Gandhi clung to the brass rails of the coach box, refusing to yield, but he did not retaliate. He was unwilling to retaliate. Some of the white passengers protested this cowardly assault, and ultimately the conductor was obliged to stop beating Gandhi, who kept his seat.
This was the context in which Mahatma Gandhi came to South Africa. The position of Indians, both in Natal and in Transvaal, was powerless. In Transvaal, they were compelled to pay a poll tax of three pounds. They were not allowed to own land except in specially allocated locations, a kind of ghetto. They had no franchise, and they were not allowed to walk on the pavement or move out of doors after 9:00 PM without a special permit. I should say, just out of interest, just for those of you who have a historical curiosity, one of my mentors, in a way, and certainly a close friend of mine who became the chief justice of South Africa under democracy, Chief Justice Ismail Mohamed, who really is the reason that I became a judge, thanks to his persistence, which I ponder about most days. Ismail Mohamed was an Indian. He was one of the leading silks in the South African bar. But for very many years, when he argued cases in the highest court in South Africa, which was in Bloemfontein in the Free State, being an Indian, he was prevented from sleeping over in Bloemfontein overnight. And so, he had to go back into the Cape Province, sleep in Kimberley, and then do the schlep every morning from Kimberley back to Bloemfontein to argue a case. In short, what Gandhi experienced in the latter part of the 19th century was still being experienced by our future chief justice in the 1970s, which just really says an extraordinary amount about the nature of South African history. Anyway, the point about it was, one day Gandhi, who had received from the state attorney a letter authorising to be out if doors all hours because he was an attorney himself, was having his usual walk.
As he passed near the house of President Kruger, the policeman on duty, without any warning, pushed him off the pavement and kicked him into the street. An English Quaker by the name of Coates, who knew Gandhi, passed by, saw the incident. He advised Gandhi to proceed against the man and offered himself as a witness, but Gandhi declined the offer, saying that he had made it a rule not to go to court in respect of any personal grievance. It was during this particular period that he made his first public speech, making truthfulness in business his theme. The meeting was called to awaken Indian resistance to a sense of the oppression they were suffering under. He took up the issue of Indians in regard to first-class travelling railways, having had that experience himself, as we’ve just seen. As a result, an assurance was given that first- and second-class tickets would be issued to Indians who, quote, “were properly dressed,” unquote. I’m going to come back to this because it was these incidents which ultimately led Gandhi to develop the central concept of so much of his life and his philosophy, satyagraha, but we’ll get back there. The fact is that Gandhi was beginning to unite Indians from different communities to oppose a whole string of legislation. Two bills were passed in the following two years, restricting the freedom of Indians severely. The Immigration Law Amendment Bill stated that any Indian had to return to India at the end of a five-year indenture period or had to be re-indentured for a further two years. If he refused, an amount of three pounds annual tax had to be paid. That came into law in 1895.
And there was a further Franchise Amendment Act, which was introduced. Once he’d completed his work, however, in Pretoria on the contract for 12 months, to which I’ve already made reference, Gandhi decided to go home. He wanted to go back to India. He returned to Durban, prepared to sail. At a farewell dinner in April 1894, given his honour, someone showed him a news item in the newspaper, “The Natal Mercury”, that the Natal government proposed to introduce a bill to disenfranchise the few Indians that had the franchise. He realised, Gandhi, that this was an ominous implication for all Indians, “the first nail into our coffin,” he said. And he then advised all his Indian compatriots to resist by action. But they pleaded that they needed him, and Gandhi agreed to stay for another month, not realising at the time that that month would last for more than 20 years. And effectively, as a result of that, he enrolled as an advocate of the Supreme Court in Natal on 25th of June, 1894 at the residents of Seth Abdulla with Seth Haji Mohamed, the foremost Indian leader in Natal, a meeting of Indian was held, and it was resolved to offer opposition to the Franchise Bill. Gandhi outlined his planned to oppose the bill. He was a talented letter writer and he was assigned the task of compiling all petitions, arranging meetings with politicians. He campaigned in India when he returned briefly and made an initial successful appeal to the British Secretary of State, Lord Ripon. And it was he who was instrumental in the formation of the Natal Indian Congress on the 22nd of August, 1894, which played a very distinguished role in opposition politics in South Africa.
By 1899, of course, the Second Anglo-Boer War had broken out, and it was during this particular time, particularly at the end of that war in 1901, that Gandhi wanted to return to India. And he did return to India, and he attended the Calcutta session of the Indian National Congress and saw a resolution in South Africa passed with acclamation. But he had hardly set up practise in Bombay when a further cable came from the Indian community in Natal, basically reminding him of his commitment to the South African Indian community, and Gandhi returned again to South Africa. At this point in time, Joseph Chamberlain, he was a colonial secretary, had come to receive a gift of some 35 million pounds from South Africa. He had no intention to alienate the European community, and therefore rejected any attempt by Gandhi to actually persuade Chamberlain as to the plight and indignity suffered by Indians on a day-to-day basis. And so, as I say, Gandhi remained, and it was during this particular period, as I indicated, that the concept of satyagraha was developed, particularly from 1906. In its very simplest sense, the concept is passive resistance. Gandhi believed the English phrase “passive resistance” not represent the true spirit of Indian resistance, since passive resistance was often thought to be by the weak and was a tactic that could potentially be conducted in anger. So, he chose the concept satyagraha, which means “truth force.” He believed that exploitation was only possible if both the exploited and the exploiter accepted it.
If one could see above the current situation, see the universal truth, then one had the power to make changes. It was focused on forceful nonviolent resistance to any and all injustice. A satyagrahi, a person using satyagraha, would resist injustice by refusing to follow an unjust law. In doing so, he would not be angry, would put up freely with physical assaults on his person, and the confiscation of his property, would not use foul language or smearing his opponent. He would never take an advantage of an opponent’s problems. The goal was not for there to be a winner and a loser, but that all would eventually see and understand the truth and agree to rescind the unjust law. This is particularly well reflected in the next clip I’m about to show you. Can we have clip two, please?
There is no cause for which I am prepared to kill. Whatever they do to us, we will attack no one, kill no one. But we will not give our fingerprints, not one of us. They will imprison us, and they will fine us, they will seize our possessions, but they cannot take away our self-respect if we do not give it to them.
Have you been to prison? They beat us and torture us! I said-
I am asking you to fight. To fight against their anger, not to provoke it. We will not strike a blow, but we will receive them, and through our pain, we will make them see their injustice. And it will hurt, as all fighting hurts, but we cannot lose. We cannot. They may torture my body, break my bones, even kill me, then they will have my dead body, not my obedience. We are Hindu and Muslim, children of God, each one of us. Let us take a solemn oath in His name that come what may, we will not submit to this law.
It’s interesting, if I may just take you back a moment to a further reference in Gandhi’s autobiography. The extent to which this particular philosophy was so deeply imbricated in that which he did. When he was in South Africa, slightly earlier from the context which I was speaking now, and he was talking about Dada Abdulla’s case. He said this in his autobiography, and it’s worth, if I may, with your permission, just reading a little bit of it. “The year’s stay in Pretoria was the most valuable experience in my life. Here it was that I had the opportunity of learning public work and acquiring some measure of my capacity for it. Here it was that the religious spirit within me became a living force, and here too I acquired a true knowledge of legal practise. Here, I learned the things that a junior barrister learns in a senior barrister’s chambers. And here I also gained confidence that I should not, after all, fail as a lawyer. It was likewise here that I learned the success of a lawyer.” But he then goes on to say this, which is where I wanted to emphasise: “I approached my opponent, Tyeb Sheth, and requested and advised him to go to arbitration. I recommend him to see his counsel. I suggested to him that if an arbitrator commanded the confidence of both parties, he could be appointed and the case would quickly be finished. The lawyer’s fees were so rapidly mounting up that they were enough to devour all the resources of the clients, big merchants that they were.” He says, “I strained every nerve to bring about a compromise. At last Tyeb Sheth agreed.
An arbitrator was appointed, and the case was argued before him, and Dada Abdulla, my client, won.” But here’s the real point. He writes, “But that did not satisfy me. If my client were to seek immediate execution of the award, it would be impossible for Tyeb Sheth to meet the whole of the awarded amount. And there was an unwritten law amongst Porbandar Memans living in South Africa that death should be preferred to bankruptcy. It was impossible for Tyeb Sheth to pay down the whole sum of about 37,000 pounds in costs. He meant to pay not a pie less than the amount, and he did not want to be declared bankrupt. There was only one way, Dada Abdulla should allow him to pay in moderate instalments. He was equal to the occasion and granted Tyeb Sheth instalments spread over a very long period. It was more difficult for me to secure this concession of payments by instalments than to get the parties to agree to arbitration. But both were happy over the result. My joy was boundless. I had learned the true practise of law. I’d learned to find out that the better side of human nature and to enter men’s hearts. I realised that the true function of a lawyer was to unite parties riven asunder. The lesson was so indelibly burnt into me that a large part of my time during 20 years of my practise as a lawyer were occupied in bringing about private compromises of hundreds of cases. I lost nothing thereby, not even money, certainly not my soul.” And it’s partly because of that, if you wish, that I return to my proposition about Gandhi’s insight on law and justice.
Let me give you some statements that he made, which reflect his deep commitment to the relationship between law and justice, and his belief in the power of law as an instrument of liberty, and his emphasis on conscience as the ultimate judge of right and wrong. This replicates exactly the previous two lectures that I’ve given in relation to Lincoln and Marshall. Here are just a few. “An unjust law is itself a species of violence. Arrest for its breach is more so. I want to love the law because it’s an instrument of liberty. True administration of justice is the firmest pillar of good government. I am a lover of my own liberty, and so I would do nothing to respect yours. There’s a higher court than courts of justice, and that’s the court of conscience. It supersedes all other courts. Justice that love gives us a surrender. Justice at law gives us a punishment. I believe in the fundamental truth of all the world’s great religions, and I believe that if only we could read the scriptures of the different faiths from the standpoint of the followers of those faiths, we should find that they were at the bottom all one and were all helpful to one another.” I can’t but help emphasise all of that. Its not unimportant, it seems to me, to our present condition. But that was essentially the philosophy that Gandhi adopted almost throughout his career. Of course, you know, he stayed, as I say, the 20 years in South Africa and played a very significant role. And I’ll come back to some of that in a short while. But eventually, he decided that it was time to head back to India in July 2014, sorry, in 1914, he came back in 1914.
He was scheduled to make a short stop in England, but when World War I broke out during his journey, he stayed in England, formed another ambulance corps of Indians to help the British. When the British air caused Gandhi to take ill, he sailed to India in January 1915. His struggles and triumphs in South Africa had been regularly reported in the worldwide press and, indeed, in the Indian press. By the time he reached home, he was regarded as something of a national hero. He was eager to begin reforms in India. A friend advised him to wait here and spend time travelling around India to acquaint himself with the people and their tribulations. He soon found fame getting in the way of accurately seeing the conditions that the poorer people lived in day to day, and attempt to travel more anonymously. He then began the practise, which characterised the rest of his life, of wearing the loincloth, the dhoti, and sandals, the average dress of the masses, during this journey. If it was cold out, he would add a shawl. This became his wardrobe. During this year of observation, he found another communal settlement in Ahmedabad called Sabarmati Ashram. He lived in the ashram for the next 16 years along with his family, several members who oddly enough had been part of the earlier Phoenix settlement. It was during the first year back that he was given the honourable title of Mahatma, “great soul.”
The title represent the feelings of millions of Indian peasants who had viewed him as a holy man. And that of course, was a title that remained with him for the rest of his life. And he was therefore known as Mahatma Gandhi. It’s significant to me that throughout this particular period, this idea of nonviolent protest was at the core. The idea that you could only overturn unjust laws by nonviolent protest was central to Gandhi’s being and to his political makeup. Let me give you the example of the 24-day Salt March in 1930. It was a protest against the British Salt Tax. Wasn’t unimportant to the British, I might add, because it represented some 8.2% of the revenue which accrued to the British as a result of the Raj. But it was this idea that you didn’t protest against a tax by any level of violence. You did it by non-violent protest. And what Gandhi said in the clip I showed you became utterly central to very much of the rest of the campaign, which was centrally focused on extracting independence from the British from the Raj. And in this particular way, you could almost say that Gandhi was a forerunner of decolonization, not decolonization in the cheap method, which somehow is crudely used by all sorts of identity politics today. Decolonization, meaning the notion that the British held that territory as a colony and that Indians were not proper citizens of their own country, and that was for them to actually carve out their own destiny, make their own mistakes, and develop their own society. And this particular clip here illustrates that. We’ll watch the third clip now.
You that matters have gone beyond legislation. We think it is time you recognised that you are masters in someone else’s home. Despite the best intentions of the best of you, you must, in the nature of things, humiliate us to control us. General Dyer is but an extreme example of the principle. It is time you left.
With respect, Mr. Gandhi, without British administration, this country would be reduced to chaos.
Mr. Kinnoch, I beg you to accept that there is no people on earth who would not prefer their own bad government to the good government of an alien power.
Oh, my dear sir, India is British. We’re hardly an alien power.
Mr. Gandhi, even if His Majesty could waive all other considerations, um, he has a duty to the millions of his Muslim subjects who are a minority in this realm. And experience suggests that his troops and his administration are essential in order to secure the peace.
All nations contain religious minorities. Like other countries, ours will have its problems, but they will be ours, not yours.
How do you propose to make them yours? You don’t think we’re just going to walk out of India?
Yes. In the end, you will walk out, because 100,000 Englishmen simply cannot control 350 million Indians if those Indians refuse to cooperate. And that is what we intend to achieve, peaceful, nonviolent non-cooperation till you yourself see the wisdom of leaving, Your Excellency.
Again, you know, just from the film, Gandhi illustrates his point that eventually the persistence of the Indians, the nonviolent persistence, would result in the inevitable. The 100,000 Englishmen could not control, at that stage, 350 million Indians. And they did leave in '47. And there’s no question that Gandhi had a major role in regard to this. And of course, it’s also true that, to a large extent, his hope that Muslims and Hindus would get together did not pay off. We all know that Jinnah, who was sitting there in the film with Nehru on the other side, you know, played the major role in ensuring that Pakistan would be hived off from the Raj to form a separate state. And it is desperately ironic when you think, therefore, how despite this non-violence which Gandhi had for his entire life, that how his life ended. Because on the 30th of January 1948, he went up the few stairs of the prayer ground in a large park in Delhi. He’d been detained by a conference of the Deputy Prime Minister Patel, who’s late by a few minutes. Gandhi’s entire life was one that insisted on punctuality, and now he’d kept the congregation waiting. He said, “I’m late by 10 minutes. I should be here at the stroke of five.” He raised his hands and touched the palms together to greet the crowd that was waiting. Everyone returned the greeting. Many came forward wanting to touch his feet. They were not allowed to do so, he’s very late. But a young Hindu from Pune, Nathuram Vinayak Godse, forced his way forward, and while seeming to do obeisance to Ghandi, fired three point-blank shots from a small automatic pistol aimed at the heart. Gandhi fell, his lips uttering the name of God, but before medical aid could arrive, his heart ceased to beat as he died in '48, just at the inception of independence. It is a remarkable life, and I didn’t want to, as I said, to talk about all of it.
I really did want to say how this particular philosophy of non-violence and this belief that law and justice were coupled at the tote was so central to Gandhi’s philosophy. And I think that it inspired millions. One could only hope that it would inspire more millions today when you think of all the violence that is engulfing the world. But I do want, if I may, in bringing this lecture to a close, to say that the 20 years which Gandhi spent in South Africa, of course starting the Natal Indian Congress, and which had, as I say, a significant influence on the Congress alliance, of which the ANC was a central part, all of this influenced all sorts of people. And I want to highlight two people who clearly were influenced by this particular notion of the way in which law on its own is not enough. In other words, if you ask us what is a law, it needs to pass a formal test and a moral test. And the two people I have in mind to share with you, as we come towards the end of this lecture, are, of course, Nelson Mandela, who has clearly been the subject of considerable attention in these lectures over the time that we’ve had lockdown, and the other, perhaps less well known to many, but whom I do want to talk a little bit about, which is Bram Fischer, QC. What I want to say about Mandela is encapsulated in when Mandela was found guilty in 1962, August '62, when he was captured in Natal and charged with incitement of African South Africans to strike, and because he left the country without a passport. He had travelled to Africa, amongst others, other to Ethiopia, for example. When he got to court, having been charged with these offences, this is what he said. I’m not going to read you everything, but just think of the resonance of what we’ve discussed to date in this address of 1962. “This court has found that I am guilty of incitement to commit an offence in opposition to this law, as well as of leaving the country. The court is aware of the fact that I’m an attorney by profession, and no doubt the question will be asked why I, as an attorney, who is bound as part of my code of behaviour to observe the laws of the country and respect its customs and traditions, should willingly lend myself to a campaign whose ultimate aim is to bring about a strike against the proclaimed policy of the government of this country.”
And then he goes through the difficulties that he encountered to be a lawyer, imposed, quote, “on me because of the colour of my skin and further difficulty surrounding me because of my membership and support of the African National Congress. I discovered, for example, that unlike a white attorney, I could not occupy business premises in the city unless I’ve obtained ministerial consent in terms of the Urban Areas Act.” And he then continues like thus: “I regarded it as a duty which I owed not just to my people but also to my profession, to the practise of law, and to justice for all mankind to cry out against this discrimination, which is essentially unjust and opposed to the old basis of the attitude towards justice, which is part of the tradition of legal training in this country. I believe that in taking up a stand against this injustice, I was upholding the dignity of what should be an honourable profession.” And he ends: “Here we, the African people, and especially we of the National Action Council, who had been entrusted with the tremendous responsibility of safeguarding the interests of the African people, were faced with this conflict between the law and our conscience. In the face of the complete failure of the government to heed, to consider, or even to respond to our seriously proposed objections and our solution to the forthcoming republic, what were we to do? This is the dilemma which faced us. And in such a dilemma, men of honesty, men of purpose, men of public morality of conscience can only have one answer, they must follow the dictates of their conscience, irrespective of the consequences which might overtake them.. We of the African Council, I particular South Africa, followed my conscience.”
For that, he was sentenced to six years. Of course, we know that the Rivonia trial, a year and a half later, sentenced him to life imprisonment. But you can see the idea here. The idea that for Mandela, as for Gandhi, there was a situation where simply because something called itself law by its name, was not enough, and that there was something far more important in struggling for, in the belief that there was an innate core to law which should have provided liberty and dignity to all. And that echoed the earlier extracts which I’ve read from Gandhi. And if that was not enough, let me draw your attention to Bram Fischer. Bram Fischer was a leading Queen’s Counsel. He was also the leader of the Communist Party of South Africa, which of course was banned in 1950. He continued, I might add, obviously, to do underground activity, but he was also the leading mining lawyer in South Africa, quite extraordinary. And indeed, after he was arrested, Bram Fischer was given permission, because of his stature as a lawyer, he was given permission to travel to London to argue a case before the Privy Council. And even though many of his friends, and I assume family, had begged him to stay in England because they knew what would happen to him, he returned to South Africa and, of course, went underground, and therefore, to that extent, had excreted bail which had been granted to him to pursue the trial before the Privy Council.
As a result, when he did not arrive in court on January 24th, 1965, having returned, a letter was read on his behalf. In it explained that he wished to continue the political work which he believed was essential. “I can no longer serve justice in the way I’ve attempted to during the past 30 years. I can only do it in the way I’ve now chosen.” Two days later, the Johannesburg Bar Council decided to institute proceedings in the Supreme Court to have Fischer removed from the roll of advocates on the grounds that his recent conduct was unbefitting that of an advocate. I should add that this has created great shame for the Johannesburg Bar Council ever since. But that, of course, is a separate story. Fischer defended his actions in a letter: “When an advocate does what I have done, his conduct is not determined by any disrespect for the law, nor because he hopes personally to benefit by any offence. He may commit, on the contrary, it requires an act of will to overcome his deeply rooted respect for legality, and he takes a step only when he feels that, whatever the consequences to himself, his political conscience no longer permits him to do otherwise. He does it not because of a desire to be immoral, because to act otherwise would, for him, be immoral.” And when he finally came before the court, when he was charged later in 1965 with various counts of sabotage, this is what he said: “My Lord, when a man is on trial for his political beliefs and actions, two courses are open to him. He can either confess to his transgressions and plead for mercy, or he can justify his beliefs and explain why he’s acted as he did.
Were I to ask for forgiveness today, I would betray my cause. That of course, my Lord, is not open to me. I believe that what I did was right, and I must therefore explain to your Lordship what my motives were, why I hold the beliefs that I do, and why I was compelled to act in accordance with them. My belief, moreover, my Lord, is one reason why I pleaded not guilty to all the charges brought against me. Though I shall deny a number of important allegations, this court is aware of the fact that there’s much in the state case which has not been contested. I accept, my Lord, the general rule that for the protection of the society, law should be obeyed. But when the laws themselves become immoral and require the citizen to take part in an organised system of oppression, if only by silence and apathy, then I believe that a higher duty arises. This compels one to refuse to recognise such laws. The law, my Lord, under which I’ve been prosecuted was enacted by a wholly unrepresentative body, a body in which 3 ¼ of the people of this country have no voice whatsoever. This and other laws were enacted not to prevent the spread of communism, but, my Lord, for the purpose of silencing the opposition, the large majority of our citizens, to a government intent upon depriving them, solely on account of their colour, of the most elementary human rights, the right to freedom and happiness, the right to live together with their families wherever they might choose, to earn their livelihoods to the best of their ability, and to rear and educate their children in a civilised fashion, to take part in the administration of their country, and to obtain a fair share of the wealth they produce. In short, my Lord, to live as human beings.
My conscience, my Lord, does not permit me to afford these laws such recognition, as even a plea of guilty would involve. Hence, though I shall be convicted by this court, I cannot plead guilty. I believe that the future may well say that I acted correctly.” To which the answer has to be, yes, it did. It did, Advocate Fischer. And the point I’m making about this is that what Gandhi’s philosophy was about, and what he inherently believed in, has these echoes in others. In South Africa, I’ve just alluded to two, but it is true across the world. And, of course, the only difference is that Gandhi remarkably persisted this in a coherent way in which, for him, no act of violence, as we saw in that second clip, could possibly be sanctioned. Which is why, despite all the criticism that might be levelled against him, it’s a remarkable philosophy and a remarkable set of insights, and basically leads us to a conclusion that how does one obey laws which are so fundamentally evil that they colonised, at that stage, 350 million Indians or the vast majority of South Africans, as the case which confronted Mandela and Fischer? I want to conclude this lecture, if I may, with a personal anecdote, because these are difficult questions. In the 1980s, during the height of apartheid, my dear friend Edwin Cameron, who landed up by being one of the most distinguished constitutional court judges that South Africa has ever had, and myself, were invited to talk to a group of Christian theologians who wanted to know from us, as lawyers and as those who basically talk jurisprudence, legal philosophy, whether it was possible to argue that, in fact, laws of South Africa could legally not be obeyed, not morally, just legally. In other words, was there legal justification for actually disobeying these law?
And this has caused us a great deal of agony because we knew, as did Fischer, as did Mandela, that these laws were fundamentally immoral. The question that was being posed to us was a different one. It’s were they still laws? And unfortunately, we had to come to the conclusion that, given the nature of the South African society at that time, they were laws, and there were consequences if you didn’t obey them. But the fact that they were laws did not make them moral. And in a sense, therefore, what we were grappling with was dilemmas that Mandela, Fischer, and before him Gandhi had had, the dilemma of what do you do in a society such as this? And it seems to me that, of all of these characters that we’ve discussed, Gandhi comes out so remarkably because of his persistence with a philosophy which was the very antithesis of violence but which was dissert the coupling of morality and law in the way I’ve indicated. And for that, it seems to me, you know, leave aside all the rest of Gandhi’s career, for that insight seems to me to provide an answer to the question I posed at the initial part of this lecture. Let me see where there are any questions before we end.
Q&A and Comments:
Q: “Is Modi moving India backwards?”
A: Oh, definitely. I think the encouraging part about Modi is the fact that there was a greater degree of resistance to Modi in the last election, and that the opposition to Modi took on a considerable part. There is very significant evidence that there’s gerrymandering of constituencies, and that Modi wins about 37% of the electorate but used to command the vast majority of the seats in the parliament, which is not necessarily the case now. But there’s no doubt that, as an ultranationalist, he stands in direct opposition to that which we’ve been discussing today. The Gandhi family wasn’t with him.
Sonny Lubnemaheric, “parents Hymie and Esther Barsel were defendants.” Yes, in the Bram Fischer trial. And indeed, they themselves were important people in the struggle for democracy in South Africa.
Q: Mitzi, “What does one do in a time when narrative inversion of the rule, Jews are really Nazis, and Israel representing a colonial presence?”
A: Well, you know, that is such a difficult question because the narrative has been inverted in all sorts of ways which are deeply disturbing. And, you know, we can debate, and I’m sure there are very different views in this group about the notion of, you know, two-state solutions and so forth. But the one thing I’m absolutely certain about is that this way in which Israel’s being portrayed as a colonial state, as if the millions of Jews who are Israelis have somewhere else to go, that there’s some metropole to which they can return, is viable. It’s an absolutely perversion of reality. And whatever your political stance might be, one has to say this is outrageous perversion of theory and history for all sorts of purposes, which actually can only make sense in trying to interpret them as a ghastly lack of any consistency or morality at all. But, you know, it’s a topic all of its own, but certainly, the idea that it’s a criminal state, what can I say?
Q: “How much of today’s violence do you think is promoted by munition supplies?
A: To a considerable extent, yes, a lot. I’m with you on this. principle manufacturer… I’m not quite sure I understand that, Beverly. I’m so sorry. Michael, "We should take note of the fact that Gandhi, during the war made the following statement that Jews should be prepared to stretch their necks out .” I don’t know whether that’s true. I don’t know where that source comes from, Michael, to be perfectly honest with you.
Oh, I see. I think what he was trying to say was that the same sort of passive resistance, thank you, Rita, could have worked for Jews. Well, you know, to be honest, as he said, “they succumbed anyway in millions.” That is not an anti-Semitic remark. That is just an attempt to apply, as much as you might disagree with it, his own theory. “You have brought it to our attention persons who are part of our history, people we should emulate. Could you find today six living…” I’ll try, Marsha, to find six people whose ideals are equally inspirational. Thank you very much to everybody.