Nelson Mandela and the Lawyer as Agent of Social Change

Vol. 22 No. 2

By

Justin Hansford is Assistant Professor of Law at St. Louis University School of Law. Special thanks to Verne Harris, Razia Saleh, Sahm Venter, and the Researchers at the Nelson Mandela Centre of Memory, Dorothy Wheeler, Director of the Johannesburg Bar Archive, and India Geronimo, former law clerk for the South African Constitutional Court and the United States Court of Appeals for the Sixth Circuit for providing the key resources and feedback that made this essay possible. For more information on Nelson Mandela, please visit http://www.nelsonmandela.org/content/page/donors.

On December 5, 2013, a preeminently honorable man, perhaps the most admired in the world, passed away. That man was Nelson Mandela, and he was a lawyer.

Mandela’s surpassing prominence came not from writing a groundbreaking law review article, or from dazzling court watchers with a brilliant closing argument in a high profile trial (save the historic “speech from the dock” that he gave at his own). Mandela’s singular gift to civilization – his inspiration and leadership of South Africa’s peaceful transition from Apartheid rule to multi-racial, constitutional democracy – will not be known by most people as the provision of a “legal service.” Indeed, relatively few among the millions who revere Mandela will perceive the formidable legal mind at work behind his history-making achievements. But as much as anything, it was Mandela’s mastery of the lawyer’s art that enabled him to build a case that changed the world.

Mandela was a lawyer’s lawyer. And his story is a lesson to all that living the lawyer’s life, at its best, engenders the skills and character traits that can empower people to make a difference in their community, their nation, and beyond.

The Formative Years

Many people do not even know that Nelson Mandela was a lawyer. That is a shame, because he spent decades engaged in the study and practice of law, applying himself vigorously both as a law student and an attorney. Mandela first enrolled at the University of Witwatersrand Law School in 1943, where he began his LLB studies. By 1944, Mandela had gotten married and co-founded the African National Congress (ANC) Youth League. The next year, his first son Thembi was born. Mandela worked as a law clerk during the day and took classes at night. But the financial strain, racially hostile university learning environment, and emerging political responsibilities proved too much, and in 1949 he was forced to abandon his LLB studies.1

The South African bar functions under a two-tiered system. A lawyer can serve either as an advocate, engaging in oral argument before the highest courts in the land, or as an attorney, primarily handling cases in the early stages of litigation or in the lower courts. Serving as an advocate required an LLB degree, but one could take an examination to qualify as an attorney and handle cases without an LLB. Mandela passed his qualifying exam and began practicing law as an attorney, working as a junior associate in a law firm. Later striking out on his own, Mandela and fellow ANC youth league member Oliver Tambo made history by establishing South Africa’s first black law firm, Mandela & Tambo, in 1952.

As Mandela recounts in his autobiography, “From the beginning, Mandela and Tambo was besieged with clients . . . For Africans, we were the firm of first choice and last resort.”2 During Apartheid, it was a crime for blacks to drink at a water fountain, walk on a beach, or ride on a bus with a sign saying “Whites Only.” These laws forced everyday black South Africans to appear in court regularly, and they needed lawyers. Because of the oppressive economic impact of Apartheid, black South Africans could rarely afford to retain white lawyers. By providing legal representation for Africans who may have otherwise been forced to proceed without a lawyer, Mandela and Tambo served as a makeshift legal aid and public defender one-stop shop during the apartheid era.

A Lawyer’s Struggle Behind Bars

Mandela’s years in practice were limited. In 1956, he was arrested and charged with High Treason along with 156 other activists, and subsequently his own defense occupied much of his time. On November 7, 1962, he was sentenced to five years imprisonment for inciting a strike and leaving the country without a passport, and his term extended to a full 27 years after the famous Rivonia trial.3

Mandela’s body was in prison but not his mind, and his lawyer’s passion for justice grew ever stronger. He used his time in prison not only to continue the struggle against apartheid, but to engage in the study and informal practice of law.4 The many correspondence courses he took through the University of South Africa included Advanced Law of Contract, Military Law, and Legal History. He would ultimately earn his LLB in 1989 after an arduous course of study that overcame prison authorities’ frequent failure to deliver the proper books, course materials, and exam materials. In prison, Mandela made it his mission to hear complaints from other prisoners, help them advocate for better treatment in prison, and assist them with their own court cases. The lawsuits he brought complaining of his own mistreatment in prison helped achieve the respect he demanded from the warders.

Mandela also encouraged younger political prisoners to study law and pursue the legal profession upon their release.5 One of those young prisoners, Dikgang Moseneke, would go on to become the Deputy Chief Justice of South Africa’s Constitutional Court, the highest court in the land, and Chancellor of the University of Witwatersrand, the same university that denied Mandela an LLB in 1949.

As a political prisoner, Mandela consciously tended to the relatively mundane task of reading and learning the law, even as he transcended mere technical mastery to emerge as a public figure of immense influence. He used this legal knowledge, and his heightened sense of justice — and injustice — to remake and reform his own society. To use the term employed by Anthony Kronman in the seminal 1990s reflection on the legal profession, The Lost Lawyer: Failing Ideals of the Legal Profession, Nelson Mandela became the embodiment of the “lawyer-statesman.”6

Kronman’s book lamented the disappearance of the ideal lawyer archetype, one who attains practical wisdom “that one acquires only by becoming a person of good judgment, and not just an expert in the law.”7 Kronman’s lawyer statesman was one devoted to the greater public good, with great sympathy for others, and true selflessness.8

Nelson Mandela personified the lawyer-statesman, fully realized. Though behind bars, in prison garb, and subject to unimaginable deprivation and humiliation, he transcended all to emerge as the true statesman, taking the lawyer-statesman ideal to the limit.

It is worth noting that Kronman, the former Dean of Yale Law School, wrote that the sustained study and practice of law builds identifiable skills and has predictable effects on the human personality. According to Kronman, the reading of appellate opinions during law study has a salutary effect, forcing students to engage with both sides of an argument, enlarging the ability to have compassion for those remote, and helping in the formation of practical wisdom, or prudence.9 Reading opinions also attunes the reader to the judicial habit of mind, nudging the reader towards a more “public spirited” attitude and concern with public policy which can then become habitual.10 Through sustained reading of cases and the continual crafting of arguments, law students and lawyers learn the careful use of language and logic, gaining the facility to produce logically sound and persuasive argumentation.

An agent of social change must be conversant in all of these skills. Mandela’s mastery of them aided his ascension above other non-lawyer anti-apartheid activists in 1950’s South Africa. He had the right equipment to become a spokesperson for the movement in part because of his skills in argumentation, and his public-spirited attitude reassured others that the movement was dedicated to public principles of justice as opposed to private principles of self-interest.

A Connoisseur of the Law

Good lawyers are good at prediction, as they must excel in predicting the outcomes of cases in order to give their clients effective counsel. This skill, also a type of practical wisdom, helps agents of social change effectively strategize with their allies in order to successfully carry out their endeavors. Under Mandela’s leadership, the ANC navigated the endlessly complex waters of regime change with expert seamanship until Mandela’s Inauguration as President in 1994, 40 years after he entered the leadership ranks of the organization by co-founding its youth league. Good lawyers are also connoisseurs of the law, genuinely interested in the development of the law and working to make it move closer to ideals of justice. Mandela was a connoisseur of the law, and his long struggle for freedom ultimately manifested itself as a campaign to change the laws of his country, not just to advance the self-interest of his own group, but also to promote “the good of the law itself.”11

An Abiding Faith in Equal Justice

Beyond his formidable lawyer skills and traits, Mandela’s deep-seated belief in the law and justice as a good in itself informed his moral imagination and his dreams of social change. Like many idealistic young law students and lawyers, Mandela spent years thinking about the question of justice broadly, and specifically whether his own country’s legal system measured up to the standards of equal justice under law. Certainly his early experiences in the profession exposed him to these injustices, both at the law firms he clerked for and at his own firm, Mandela & Tambo. As he stated in his autobiography, “As a student, I had been taught that South Africa was a place where the rule of law was paramount and applied to all persons, regardless of their social status or official position. I sincerely believed this and planned my life based on that assumption. But my career as a lawyer and activist removed the scales from my eyes.”12

In spite of the brutal reality of legal inequality in South Africa, Mandela never lost faith in the broader principles of equal justice he absorbed during his legal studies. In his speech from the dock, which Mandela wrote while imprisoned with few resources beyond a pen and a piece of paper, he cited the Universal Declaration of Human Rights, championed the importance of democratic self-government, and stated “The Magna Carta, the Petition of Rights, the Bill of Rights are documents which are held in veneration by democrats throughout the world . . . I regard the British parliament as the most democratic institution in the world, and the independence and impartiality of its judiciary never fail to arouse my admiration. The American Congress, that country’s doctrine of separation of powers, as well as the independence of its judiciary, arouse in me similar sentiments.” On these grounds, Mandela compellingly argued that the injustice of apartheid justified his protests and action in attempting to topple it.

To be sure, this comprehension and admiration of venerable legal documents, and the ability to cite them as authority for principled positions, are not exclusively the lawyer’s domain. Indeed, Mandela’s speech from the dock is strikingly similar to Dr. Martin Luther King’s letter from Birmingham jail. But lawyers, more than others, pledge to protect the constitutional principles that it is their job to study, and lawyers alone are commissioned by their profession to gain a degree of mastery of the system of laws and government.

Mandela’s dual commitment to equal justice under law and to a liberation movement based in African Nationalism advanced his cause in key respects. It allowed him to gain the respect, fear, and even admiration of his opponents, steeped as they were in Western liberal thought. Mandela fully grasped their own values and embodied them in a more authentic form than his own government did. Mandela’s admiration of the western legal tradition created a crisis of reflection—Mandela forced apartheid officials to look at themselves in the mirror and find themselves wanting, according to their own most deeply held values. As the philosopher Jacques Derrida so aptly stated in his tribute to Mandela, Mandela, in admiration, Mandela “respects the logic of the (legal) legacy enough to turn it upon occasion against those who claim to be its guardians, enough to reveal, despite and against the usurpers, what has never been seen in the inheritance: enough to give birth, by the unheard-of act of a reflection, to what had never seen the light of day.”13

Mandela as an Exemplar for Today’s Legal Profession

Today in 2014, the public’s perception of the legal profession continues to decline. A recent study cited by the ABA Journal found that only 25% of the population has a positive view of lawyers.14 The Carnegie Report in 2007, the last comprehensive study of legal education and the profession, made the point that the legal profession continues to suffer from an image crisis and a not unrelated lack of morale. Many lawyers have personal stories that support this impression. For example, at a recent cocktail party, when I told someone that I was a law professor, after the requisite revue of lawyer jokes, someone said, “My sister wanted to be a lawyer, but my parents said no, they thought it was a dishonorable profession.”

One way to address this problem is to promote more prominently images of lawyer exemplars whom the public can admire. Doing so will give the broader community, including potential lawyers and law students, a different view of what it means to be a lawyer. Mandela, above all, is such a lawyer exemplar. The outpouring of appreciation for Mandela’s story is a testament to the continuing capacity of a life in the law to inspire by its transformative impact.

Mandela’s story is a lawyer’s story, the story of a life in conversation with the law—first learning it, then arguing it in court and using it to try to affect social change, then losing his liberty by operation of a perverted version of it, and finally becoming president of a constitutional democracy, entrusted with administering it. Ultimately, Mandela’s life was about having a good dream, a dream about justice, and having that good and lovely and admirable dream come true against all odds. Any profession that could encompass a legacy of that type is a profession that should engender unshackled and limitless pride.

Endnotes

1. David James Smith, Young Mandela: The Revolutionary Years 85 (2010).

2. Nelson Mandela, Long Walk to Freedom: The Autobiography of Nelson Mandela 149 (1995).

3. Nelson Mandela Timeline 1960-1969, South African History Online, http://www.sahistory.org.za/topic/nelson-mandela-timeline-1960-1969 (last visited Feb. 13, 2014).

4. Documents regarding Nelson Mandela’s Prison Studies are available at the Nelson Mandela Foundation Centre of Memory in Johannesburg, South Africa. Selected documents are available online. See Nelson Mandela Centre of Memory, http://www.nelsonmandela.org/content/page/nelson-mandela-centre-of-memory-links (last visited Feb. 13, 2014).

5. Interview with Deputy Chief Justice Dikgang Moseneke, Constitutional Court of South Africa, February 24, 2014.

6. Anthony Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession 11 (1993).

7. Id. at 2.

8. Id. at 12, 14.

9. Id. at 75.

10. Id. at 118.

11. Id. at 139.

12. Nelson Mandela, supra note 3, at 260.

13. For Nelson Mandela 17 (Jacques Derrida et al. eds., 1987).

14. Debra Cassens Weiss, Only 25% of Americans Have a Positive Image of Lawyers, ABA Journal (Aug. 21, 2009, 7:44 AM) http://www.abajournal.com/news/article/only_25_of_americans_have_a_positive_image_of_lawyers/.

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