legality and legitimacy

November 20

• Last  night I had the good fortune to hear Louis Joinet, legal scholar and former magistrate of the Cour de Cassation (French Appeals Court?), currently attached to the UN Commission on Human Rights in Geneva. M. Joinet was invited to speak on the rights of foreigners by the 12th arrondissement collective  that supports undocumented workers, with whom I demonstrated a few weeks ago on behalf of an improperly challenged resident immigrant. (My 15 seconds of fame, a video interview on that occasion posted on Liberation.fr, would appear here if I knew how to make the link.) M. Joinet gave a theoretical overview of the question but spent most of his time fielding questions from the 50 or 60 interested citizens who filled a conference room in the Mairie of the 12th. Here are a few highlights of his talk: 

• Though like many here he refers to France as the "pays des Droits de l'Homme," M. Joinet derives the theory of Civil Disobedience, his principal topic, from Thoreau and  M. L. King, both of whom he cited;
• While undocumented workers are by definition in a situation of "délit" (infraction?), Joinet made the point that theirs is an administrative rather than a criminal offense, a distinction the current French government has deliberately blurred, as in the case of the immigrant I was involved in supporting;
• Joinet's fundamental distinction was between legality and legitimacy: his point being that disagreement with the law is legitimate in a democracy, and thus the acts of resistance to the law which characterize the efforts of groups such as the sponsoring collective have a legitimacy as well. For Joinet such resistance in the name of what he called an "interêt supérieur"--the human right to immigrate, to live decently in the host country--is not only 'legitimate' but essential to the democratic process;
• Several members of the audience challenged the limits to that resistance, which Joinet insisted must be non-violent: one cited the violence of 1789 and 1871, both of which the questioner insisted were legitimate instances of violent resistance, while another pointed out that resistance to the Vichy government was only legitimized après-coup, and only then because Germany lost the war. Numerous audience members cited the extraordinary violence the government employs when enforcing its immigration policies. Joinet cautiously acknowledged the place of violent resistance under carefully specified conditions, e.g. that no other means of resistance is available, but he clearly believes in the efficacy of carefully monitored and calibrated non-violent resistance;
• He also cited an extraordinary precedent in French law, which he called "légalité future": several decades ago, after the right to abortion had become widely recognized but before that right was codified in the law, a French judge ordered that prosecutions cease on the grounds of future legality, i.e. the inevitability of a change in the law. I wonder what American legal specialists would say about that principle;
•  Joinet placed repeated emphasis on the importance of transparency for the argument he was making, and the dangers of clandestinity. Being legitimate, civic resistance must make its actions and its rationales perfectly clear, so as to distinguish itself from criminality, which he noted is by its nature clandestine. He cited a personal instance: while trying to negotiate an agreement in El Salvador between the military government and the FMLN, he noted that the quite understandable clandestinity of the latter made it hard to reach a verifiable agreement on the basis of the UN-guaranteed principles Joinet was there to represent. 

Finally, Joinet thanked his audience, saying "You know more than I do about civic resistance because while I deal with it in theory, you practice it on the ground ("au terrain")." Coming from this eminent jurist whose long record of support for humane legal principles would be hard to dispute, this was high praise indeed.