Fighting for Change Within (and Outside) the Law

The line between advocacy and activism

Fighting for Change Within (and Outside) the Law

Merriam-Webster defines an advocate as some-one who supports a cause. A litigator launching a Charter challenge against an outdated law and a Member of Parliament introducing a Private Member’s Bill are both advocates working within the confines of existing systems (e.g., legal, Parliamentary) to pursue social change.

An activist is similarly defined by Merriam-Webster as someone who supports strong actions in support of or in opposition to one side of a controversial issue. An activist may be part of a civil society or not-for-profit organization, a grassroots group of like-minded individuals, or acting on their own accord. An activist may be an advocate and work within existing systems or undertake actions which are incongruous with existing laws or social norms.

Efforts to reform and strengthen existing laws and policies can take the shape of both advocacy and activism, as demonstrated by the growing call for the crime of “ecocide” — an unlawful act committed with knowledge that it will likely cause severe and widespread or long-term damage to the environment — to be added to the Rome Statute of the International Criminal Court. The Independent Expert Panel for the Legal Definition of Ecocide has created legal advocacy tools such as a proposed definition of ecocide and statutory amendments, while Stop Ecocide International uses classic activism tools to call for change, including an international petition and letter-writing campaigns to elected representatives.

Nelson Mandela was both a legal advocate and an activist. He described his life in the 1950s as running on two separate tracks: his work in the anti-apartheid struggle organizing meetings, protests, and campaigns, and his law practice, which included representing Africans for crimes resulting from apartheid legislation (such as walking through a Whites Only door or being out past 11:00 p.m.). While working at the firm he co-founded, he concurrently led the African National Congress (“ANC”), a Black liberation political party which opposed the National Party’s laws and policies.

Mandela ultimately took his efforts outside of South Africa’s debased legal system, however, as inequality was entrenched within the laws of the land. In 1961, Mandela stopped practising law, went into hiding, helped form the military wing of the ANC, and organized acts against the National Party. Even after being imprisoned, Mandela continued to organize campaigns to challenge racial inequality.

Activists often start advocating within existing systems before launching campaigns, protests, or extralegal efforts. For example, many Indigenous Nations participated in the National Energy Board (now the Canada Energy Regulator) process regarding the Trans Mountain Expansion Project application. Despite significant opposition, the pipeline project was approved and so activists began occupying and obstructing the work site, and many continued to illegally do so after an injunction was granted prohibiting protestors from being on-site.

History has demonstrated that many significant legal changes came about, at least in part, due to extralegal activism efforts. Nevertheless, lawyers ought to tread carefully when clients ask about undertaking acts of civil disobedience. A lawyer who advises acts of civil disobedience could be considered a party to the offence, found to have induced the offence, or even be found guilty of civil or criminal conspiracy. The Professional Legal Training Course Practice Materials indicate that counselling — or even participating — in civil disobedience that a lawyer believes is morally justifiable will not generally result in professional disciplinary measures, barring extreme cases and circumstances that constitute professional misconduct.

As both a lawyer and a longstanding activist, I believe that careful and contextual consideration of a cause will dictate whether it is best supported by legal advocacy or lawful civil society efforts — or both! After all, while the law can be both a sword and a shield, it was a sling-shot and a rock that David used to ultimately defeat Goliath.