Koskenniemi and International Law

Right. I will try and put up a proper post soon, but this 'holiday' is surprisingly busy. Anyway I was going through some notes I made when I discovered my annotation of Martii Koskenniemi's 'What Can International Lawyers Learn From Karl Marx' ((2004) 17 Leiden Journal of International Law 229). Anyway, Koskenniemi has an interesting quote, dealing with the relationship between International law, political mobilisation and Iraq:

“International law may act precisely as an instrument through which particular grievances may be articulated as universal ones and in this way, like myth, construct a sense of universal humanity through the act of invoking it. From such a perspective, the project of universal justice appears as a horizon at the intersection of a public realm of states regulated by international law and the civil society reaching beyond sectarian interests. That this intersection appears only occasionally, and even then in connection with events of exceptional magnitude, even scandal, is an aspect of the difficulty that any fundamental challenge to the iron laws of power must imply.”

Frankly, I think Koskenniemi is way off on this point. Rather than International Law serving as an instrument through which the particular is made universal, I'd argue that International Law serves as the opposite. We'll take the example of the Iraq war. Now a sophisticated Marxist analysis must of course view the war in all its conjunctural specificity. It is a concrete event in and of itself. However, the concrete event is only really to be understood as a manifestation of a universal 'structure'. Thus the war should be seen as an imperialist war, and imperialism must be seen not as particular strategy adopted by a 'cabal of neo-cons', but as a structural relation inherent in the world economy.

This means that the Iraq war should be seen as a concrete manifestation of 'universal' social relations. But when Iraq is viewed through the prism of international law all of this disappears. The war is condemned for being 'illegal' (and this is questionable in itself), but legality must always refer to a highly specific set of events. Thus what is condemned is not imperialism, or even war in general but this particular war.

Whilst it is no doubt true that opposition to the war based on international law might mobilise large numbers of diverse people this is not the same as setting the war up as a universal. In fact part of the reason that a legalistic opposition to the war is able to gain large amounts of followers is precisely because of the specificity of analysis. Opposing the war on legal principles means one does not need to carry out any broader analysis of why such wars happen in the first place, and certainly does not commit one to an opposition of the domestic status quo.

Furthermore condemning the war as illegal opens up questions as to whether it is therefore ok to support imperialist wars that are seemingly legal. Considering the fact that 'legality' to a large extent structurally favours 'power' over 'justice' (if one can even invoke such a term) is a nail in the coffin for this thesis.

Ultimately legalistic opposition serves the opposite of what Koskenniemi suggests. The illegality of the war will always be confined to 'the facts', this is even more the case with international law, where norms are freewheeling and hugely context specific. Furthermore, opposition rooted in international law means that once a country is given legal authorisation to head in and start the bombings opposition 'dries up'.

Law and Society

Not law or lawyers, but society, gives fighting advantage to the propertied.
Karl Llewellyn, The Bramble Bush, p. 145

Considering all the bad public image lawyers get (and in most cases I'd imagine it is a thorough deserved reputation), this quote could just seem to be the knee jerk defence of an offended lawyer. However, I reckon Llewellyn has a point, in so far as he enables us to see the complex interrelations between law and society (although the conceptual separation of the two is not necessarily something I'd advocate).

I think that, as it goes, what Llewellyn says is spot on. If one wishes to identify the reasons why certain members of 'society' ('the propertied') are systemically and structurally favoured it seems foolish to simply look at law. Such domination is rooted in the deep structure of a particular material totality.

However, this being said I think that Llewellyn may be going a little bit too far in his assertion. Firstly, taking this position artificially separates 'law' from 'society'. This seems in opposition to the fact that Llewellyn's own writing posits the close link between the two. Secondly, such a statement ignores the important role that law and legal systems play in reproducing capitalist relations of production and protecting them. When one looks at a social formation as a historically constituted totality it is often foolish to separate production and reproduction in such a rigid way, as ultimately the two may be organic to eachother.

This is especially true of the legal form, insofar as it plays the vital role of interpellating people as legal subjects. Can one really imagine the capitalist mode of production without some of the vital legal relations it throws up (contract, property etc.). This is especially true when looks at the close reciprocal relation between the relations of production and the law. Law serves to butress protect, and in some instances even create a given set of productive relations. In this sense though we can and should give primacy to 'society', it is foolish to think that it does all the work. Law and society exist in a dialetical, reciprocal relation, with (to coin a phrase) society causing in dominance.

The End Of Habeas Corpus in Great Britain

Interesting article in Monthly Review on the recent spate of anti-terrorism legislation that has dogged the UK. One thing that I find quite interesting is the relationship between exclusion and emergency within notions of the 'rule of law'. Aside from the numerous problems associated with the formal freedoms guarateed by the 'rule of law' the fact of the matter is that liberal democracies across the world systematically exclude groups of people from the 'rule of law'. This is particularly aided by the notion of the 'state of emergency', when certain protections are necessarily suspended to 'defend' the public.

Thus the 'state of emergency' always serves to justify departures frm 'normal' legality. This is where the position of the Law Lords in the Belmarsh detainees case becomes problematic. Most of the Law Lords didn't question the fact that a 'state of emergency' did exist, they merely decided that the measures used to combat said emergency were disproportionate. Negri and Hardt have noted in Multitude that the state of 'emergency' has become the norm in liberal democratic society. There is a 'permanent exception' that constantly justifies the exclusion of certain people from 'the rule of law'.

The point is though that as this 'emergency' becomes more serious, more generalised, the class of people who are potentially affected by these 'gaps' widens. Witness the terrifyingly indeterminate definition of terrorism in the the Terrorism Act 2000. As the article states:

The most significant part of the Prevention of Terrorism Bill is the fact that it expands the suspension of law to include citizens. It puts an end to a double judicial system: rule of law for citizens and pure violence for foreigners. The suppression of habeas corpus is extended to the whole population. It is now a generalized state of exception. This law, like the American Patriot II project, must be envisaged as the first step in a process intended to extend measures that suspend the law to the entire population, including citizens, within the context of the war on terrorism. The home secretary already revealed this project. He also spoke of the possibility of trying simple suspects in special courts of law. The accused would not have the choice of his or her attorney. The latter would be selected by the executive power, on the basis of a list approved by the secret services.

This is important. Whilst the systematic exclusion of certain persons from the legal system is never something to be taken widely, an increase in its scope is of course worrying. It represents the increasingly overt politicisation of the law, and a continued disintegration of the legal form.

Of course, when one rationally examines the situation there really is no state of emergency to speak of. One wonders just how much threat there truly is from terrorism. Even those 'big' attacks that do succeed in reality kill very few people. If one was to judge states of emergencies from deaths surely the most pressing state of emergency is caused by the impersonal violence of global capitalism, which kills untold numbers of people every day.

But if we have reached an 'emergency', the one wonders when it will ever end. If this is an emergency, then for the foreseeable future we will surely be living through an emergency. This of course has implications for the 'rule of law':

However, this law is no more than formally part of a state of emergency. It gives judicial prerogatives to the home secretary. A person is designated as terrorist not by the decision of a court, but by a certificate issued by a representative of the executive power. At no point does the latter have to justify a decision that is applied to simple suspects. Objective facts, which should be used as the basis of these suspicions, are not even necessary since they remain secret. It suffices that the administrative authority assert that it is detaining the suspects and that this declaration be corroborated by a court. What is the guarantee of a judicial control that is exercised without the possibility for the defense to assert its rights, even to know what it is being charged with? What independence can the judicial power assert in a decision-making process in which it does not have the means to verify the information that is given to it as well as the means of proof?

The Bill may have been defeated in the Commons (in part), it may be delayed and troubled by the Lords, but it represents a trend in liberal democracies towards the overtly political rule of pure violence. Much as notions of the 'law' as non-violence should be derided, it remains true that the law is violence exercised within a specific form, one in which individuals are interpellated as formally equal, and at least have a minimal protection, insofar as 'legal language' goes. This tendency to remove even those slim protections is surely a worrying one.

Lords threaten rough ride for anti-terror bill

Should we support processes we disagree with if they are producing outcomes we do agree with?

Indeterminacy

Hmmm...long time no update. I had actually started to write this post about a week ago whilst slightly intoxicated by it wouldn't 'flow', so now, several essays and lots of reading later, I'll have a go.

O.k. before I outline the indeterminacy of legal reasoning I thought I'd outline the object of critique, i.e. the notion that legal reasoning is determinate.

Essentially a lot of liberal legalism posits that there is a discrete type of legal reasoning. This reasoning creates 'rules' of law, which are then applied to different situations. The different situations are predictably resolved by these rules and we all live happily ever after.

The indeterminacy (or under-determinacy) thesis makes several observations:

1. A rule cannot guarantee a particular result when applied to a particular situation (thus on the basis of the rules we cannot predict judical decisions).
2. That 'legal' reasoning is not sufficient to decide how to resolve a particular situation, hence some 'other' type of reasoning must be used.

Firstly, I will talk about the causal ineffectiveness of legal reasoning. Some people notably, the crits, adopt the view point that the indeterminacy of legal reasoning is rooted in the general, or global indeterminacy of language. I myself have a problem with this, because as we all know language may be under-determinate but meaning is given through community discourse.

Language, in terms of the law, can be a starting point for indeterminacy, if we confine it to the legal sphere. It is true that it is often unclear what a particular term means. In terms of the law it is not true that a 'community' gives a term a fixed meaning. This is because the very structure of the legal community, and the legal form, leads to contestation, lawyers are premised on the idea that legal language is contestible.

Furthermore, because statutory langauge will be necessary indeterminate it must be interpreted. It is a mistake to think of interpretation as being about divining what a word means or what it was intended to mean, rather interpretation is about giving effect to something, or resolving a particular situation. Furthermore, there are many contradictory canons of statutory interpretation, that mean a 'word' can be construed in innumerable different ways because of 'legal reasoning'.

Secondly, and linked to this is the fact that 'words' and rules have got to be applied to facts. If, as a good Pashukan-ite, one sees law as being rooted in form then this becomes important. Law's primacy lies in resolving disputes between formally equal legal subjects, thus the application of a 'rule' to a particular dispute constitutes the dynamic 'essence' of the law. Thus it is necessary to see if a particular situation is subsumed beneath a particular rule. This can be problematic in practice, as every situation cannot have been contemplated by the 'rule maker'. Thus the court must somehow decide whether a given situation falls within a particular rule.

Application is even more problematic when we're discussing the common law. This is because most common law cases contain numerous, different, lengthy judgments, with dissents etc. This means that a judge, when examining 'precedent' has no clear line 'telling' him/her what to do, since the precedent can't 'tell' the judge what to do, some other criteria must suffice. This is worsened by the fact that every precedent can be read broadly or loosely, or even 'confined to the facts'.

Also very problematic is the combination of the meaning/application of certain terms such as 'reasonableness', 'fairness' etc. These terms are highly contextual and are so broad that they cannot guarantee any particular result.

Thus if legal reasoning cannot guarantee a result how are decisions made? Evidently there must be some other (perhaps unconcsious) criterion that goes into the decision, this is where material conditions make their impact.

Blair defeated on 90 days

Nuff said, and I'll put up an indeterminacy post soon too, promise.

A hopeful huzzah!

Well, it appears that MPs have more spine than I credited them with (well done to Bob Marshall Andrews too):

Senior Downing Street sources said that although the Prime Minister remains personally convinced that allowing police to detain suspects for up to 90 days without trial is essential to combating the threat from al-Qaeda, he has now accepted that in the present political climate he will have to compromise.

Now, obviously all of this does not bode well for the authority of Tony Blair (always a good thing) but I'm sure other blogs will have a better time explaining this than me. Also, rather good news on the glorification front:

The Home Office will also offer concessions this week over separate plans to criminalise religious hatred - bowing to demands from peers for safeguards to protect freedom of speech - and over proposals in the terror bill to outlaw the glorification of terrorism, introducing new safeguards making clear what would trigger a prosecution.

Whilst I suspect this will not register the offences perfect (and as soon as I can't find the modifications I'll examine them), at least it makes things a little clearer. Though I suspect that the anti-imperialist left might still face problems, insofar as the definition of terrorism is still ridiculously wide, though again it's a case of 'more on this when I get it'. Lord Woolf was up to his old tricks too:

He spoke after chairing a London lecture at which Israel's chief justice, Aharon Barak, said judges must 'protect democracy both from terrorism and from the means the state wants to use to fight terrorism'.

Woolf agreed, adding in an unprecedented intervention: 'Every time you move the goalposts, you are accepting a different level of what is acceptable. That then becomes the new starting point, whereas before it was the last point. And that is the case with the length of time one can hold people in custody without charge.'

Aside from the irony of Israel's Chief Justice saying what he did, Lord Woolf is again emphasising this odd trend of judges operating to defend progressive acheivements. And on irony:

Blair is said to be privately 'exasperated' by MPs' refusal to accept the police argument that a case cannot be properly built against terrorists within the current permissible period of 14 days, and has accused the rebels of playing politics.

As late as Friday, he was understood to have been insisting on toughing out the vote.

'People have to realise that using a bill like terrorism to defeat the Prime Minister is not in the Labour party's nor the country's interest,' said one senior ally. 'He's not going to play games with people. As soon as he ceases to pursue what he believes in, he's dead and, more importantly, the Labour party is dead.'

Playing politics? What does Blair think he's doing? How is a smear accusing rebels of putting the defeat of Blair against 'national security' not playing politics?

Tone

Tony is pulling a strop it seems:

But Mr Blair insisted that his flagship terror bill must go through intact, and challenged Labour rebels to consult their constituency parties and voters this weekend to see if there was public support for the measure.

Fat chance.

Though one hopes my favourite topic will also be addressed:

The biggest shock to the government came when an amendment tabled by leftwing Labour backbencher and QC, Bob Marshall Andrews, making it clear that people had to show that they intend to induce and encourage terrorism before they could be prosecuted was defeated by one vote. He warned that both he and Cherie Booth could have been arrested under the bill, and quoted the prime minister's wife as saying: "In view of the illegal occupation of Palestinian land, I can well understand how decent young Palestinians become terrorists."

Mr Marshall-Andrews said: "There is no defence, there is no proviso which is placed in the act which would enable Cherie Booth QC, if the director chose to prosecute her, to defend herself."

bwhahahaha

Charles Clarke is being harried it seems:

Home Secretary Charles Clarke has moved to head off a further revolt over new anti-terror laws after the government's majority was cut to just one vote.

Although they're all still pretty much fixated on the 90 days internment (not that such measures are right). Also:

Earlier, 33 Labour MPs rebelled against the government over plans for a new offence of indirect incitement or glorification of terrorism.

Which is always nice. They want more appropriate measures:

But critics tried to force changes so people could be prosecuted only if they intended to incite terror.

Which is suppose is better, but still doesn't address the problematic definition of terrorism.

Clarke 'flexible' on terror laws

Well apparently so, anyway. I personally haven't talked much about the detention period, I guess I oppose extending it so much, but I have had other things on my mind. Nevertheless:

"I am ready to look for flexibility to achieve agreement," he told Today, adding: "I don't think 28 days is long enough to meet the concerns that the police have set out, but of course I think it is necessary to see what agreement can be reached."

Whilst this is of course good news I can't help but feel that these are cosmetic measures, designed to curb the waiverers, so as to pass some of the frankly terrifying legislation on the 'glorification' of terror. And of course the hegemony of anti-terror rhertoric guarantees people will fall into line.

I mean look at the accusation that was levelled against the Lib-Dems, they are apparently:

"[W]eakening the common front of democratic politics against terrorism"

Heaven forbid that one might object to the word of the Lord Home Secretary. Again, however, some people are seeing that this law will either entail mass criminalisation or huge amounts of discretion and political targetting:

Mr Clarke has said existing laws covered somebody urging people to attack a particular Tube train.

But the new offence would target those urging attacks on the Underground network in general, he says.

Critics of the measure say the new offence has been drawn too widely.

They question whether it could have been used against those praising Nelson Mandela when his African National Congress was using armed struggle against apartheid.

Not only those people however, because as I have tried (repeatedly I might add) to drive home, terrorism is:

"terrorism" means the use or threat of action where-
	(a) the action falls within subsection (2),
	(b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and
	(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.
	(2) Action falls within this subsection if it-
	(a) involves serious violence against a person,
	(b) involves serious damage to property,
	(c) endangers a person's life, other than that of the person committing the action,
	(d) creates a serious risk to the health or safety of the public or a section of the public, or
	(e) is designed seriously to interfere with or seriously to disrupt an electronic system.

Which rather destroys Charles Clarke's idiotic bumbling:

He said he could not "think of a situation in the world" where terror was justified for political change.

Committee chairman John Denham said this "presumably" meant Iraq was "the war to end all wars".

Mr Clarke replied: "It's not terrorist violence. This is about terrorism, not about violence used in the way that you describe.

So apparently, the Iraq war did not involve 'the use or threat of action', that 'advanc[ed] a political cause', and we all know it didn't involve violence, damage property, endanger life, create health and safety risks or interfere with an electronic system. Either that or Mr. Clarke doesn't understand his own legislation.

Maybe someone should prosecute the government as soon as this Bill is passed, though we know it would never be allowed to go to court, it would still be fairly fun, and entirely within the bounds of the statute.

Human rights

Lenin has posted an interesting article on Human Rights over at the tomb. Again, however, I think that there may be some, in my opinion, misconceptions and exaggerations going on.

The trouble with human rights, then. In itself, a codified set of rules about how human beings should be treated is both valuable and necessary.

I guess I might agree with this. But I would first point out that by the very notion of rights, we presuppose the legal form, which means we presuppose a particular set of material conditions. Which is why I'm not sure I agree with:

the reason it could do this is that it attempts to ground politics in something essentially apolitical.

Insofar as human rights are rights, i.e. the action of a being, interpellated through the legal form as a legal person they presuppose the existence of commodity producing society, this makes them deeply political, in fact their very structure is tied to a set of material relations. This being said, I suspect I have a slightly more positive view of human rights than Lenin, firstly:

Political contexts are eschewed, and instead shocking instances of brutality are interpreted as attesting to something constant in human nature that must be suppressed in various ways - usually be reducing the political sphere, since it is precisely in the domain of democratic possibility that governments can be beholden to 'special' interests rather than universal ones.

This division is surely premissed on the fact that political content cannot be expressed through the legal form. Yet, in fact, the converse is true. Every particular legal conjuncture is deeply political and hugely contestable. It does seem somewhat odd to privilige a particular 'political' sphere, especially when said sphere is structured around capitalism.

Wadham of Liberty argues that "Elected parliaments in this country and around the world have shown that, on their own, they are not able to protect human rights properly.". This lead him to call for removing the power to appoint judges from the elected government and place it in the hands of "an independent appointments committee".

This, in itself, has always been pretty problematic for me. Firstly, it seems that Lenin is exalting our 'elected government', this presumably is the same government who sent us to war in Iraq. Surely Lenin, following his namesake should ask the question: Who, whom? I think it is also worth noting that judges and their decisions are not entirely divorced from the sphere of the political, that is to say class struggle, would Lenin object to judges declaring the Terrorism Act incompatible with the Human Rights Act (the objection being based on the concept of a democratically elected government).

Human rights as an ideology is a potent mobiliser of support for imperialist interventions and, as mentioned, a formidable guarantor of legitimacy.

Correct, but with at least the possibility that human rights can be contestable.

The problem as I see it is thus:
1. What is the political? Although Human Rights movements insist on their apolitical nature we all know the truth, human rights are deeply political. If this is the case they are contestible, even if ultimately they need to be transcended.
2. If human rights can be political then this means that it is not necessarily true that their use is anti-democratic (although readers will know I have a serious problem with the legalisation of politics). Democratic politics, as taken as liberal democracy, are highly exclusionary insofar as they ignore the political dimension of the economic, would we say a strike was anti-democratic because it didn't involve formal political channels.

Ultimately I think I am of the view that human rights are a lot more complex than some people would like to admit. Firstly, they are obvious products of bourgeois society, inasmuch as the legal form is rooted in commodity exchange. This being said, and within the limited context I have previously outlined, with the growth of the legal form as primary social regulator, political dispute, regardless as to its progressiveness is expressed through the legal form. Although this is subject to a number of problems I have outlined it cannot simply be dismissed. The scope of a right is demarcated by particular material conditions.

China Miéville has shown that international law, is structured by the violence of imperialism (though I have my slight objections on this point). But human rights law is more difficult to pin down on this point. Because human rights law is related to legal human subjects it can be successfully appropriated by 'the people'. I mean, do any of us complain about the decision in Pinochet (notwithstanding the pathetic getout clause).

Whilst we should struggle to overcome human rights, I think our approached should be nuanced, Lenin writes (and quotes):

David Chandler, in his perspicacious book, (From Kosovo to Kabul: Human Rights and International Intervention, Pluto Press, 2002), has a better suggestion. The active subject must be re-emphasised. Mass politics must be reinvigorated, and we must make the most of "people's capacity for autonomy and collective rational decision-making, a capacity denied by the proponents of ethical regulation from above".

The point here is that the two are not mutually exclusive. Mass politics is of course primary but that does not mean efforts should not be made to re-capture human rights law. Human Rights are also not a priori connected to regulation from above. One can imagine a situation where certain human rights are seized upon and used against the oppressors (remember also that some human rights are economic).

The important thing to remember is that the legal form is not just a product of someone's imagination, it is an objective form posited by a certain set of material relations. Therefore, whilst we attempt to transcend its narrow form we must also engage with it and push it to its limits, for change is never so stagist as to move from 'legal egoism' to selfless mass action, the new is expressed through the old, and then it transcends it.

Sanctioned corruption

Oh what an interesting fact I found out in my contract lecture yesterday. Apparently, it is perfectly fine for the police to take payment, for special services rendered to individuals. From the Police Act 1996:

25. - (1) The chief officer of police of a police force may provide, at the request of any person, special police services at any premises or in any locality in the police area for which the force is maintained, subject to the payment to the police authority of charges on such scales as may be determined by that authority.

'Special services' indeed. These services have included stopping striking miners from picketing (Glasbrook Bros Ltd. v. Glamorgan CC [1925]). One would imagine it would be the sort of thing used against protestors too.

What can I say?

Old news...

...nevertheless nicely written. A week ago now, Seumas Milne wrote a very good article in the Guardian on my bête noire, this horrible Terrorism Bill. I particularly liked this passage:

In fact, under the terms of the bill, anyone who voices support for armed resistance to any state or occupation, however repressive or illegitimate, will be committing a criminal offence carrying a seven-year prison sentence - so long as members of the public might reasonably regard it as direct or indirect encouragement. Terrorism is not defined in the bill as, say, indiscriminate attacks on civilians, let alone an assault on civilian targets by states - but as any politically motivated violence against people, property or electronic systems anywhere in the world. This is not only an assault on freedom of speech and debate about the most contentious subject in global politics. It also makes a criminal offence out of a belief shared by almost every society, religion or philosophy throughout history: namely, that people have the right to take up arms against tyranny and foreign occupation. Clarke made clear on Tuesday that this was exactly his intention. He could not, he said, think of any situation in the world where "violence would be justified to bring about change".

Which means, as most people of even a vague intelligence have realised:

Clearly, that did not apply to the invasion of Iraq or the bomb attacks on street markets carried out in Baghdad by US and British-backed opposition groups before 2003. But, as the mayor of London pointed out yesterday, support for Nelson Mandela, the wartime resistance and any number of anti-colonial liberation movements would all have been crimes under this bill.

Though as we know, Blair has (oddly) been prattling that it's all a matter of common sense, clearly the old boy hasn't read the Terrorism Act 2000. But, as we all know, this law is not 'designed' to 'catch' everyone, it's there to catch a few people. It's kind of like infect a whole population with a virus, and then only giving certain people the cure, as Milne puts it:

In practice, of course, the law is intended to be used selectively: it is aimed not just at those who praise bomb attacks on the London tube, but at Muslims and others who believe that Palestinians, Iraqis, Afghans and others have a right to resist occupation.

Which, of course makes me seriously worry about the fate of the anti-imperialist left. As Milne correctly notes, the likely effect of this legislation is to likely to simply 'alienate' those Muslims who serve as its target. And we all know what this sort of thing ended up doing in Ireland.

All I hope is that people can avoid the smears of not caring about public safety and oppose this terrifying law.

Zizek

My opinion on Slavoj Zizek is pretty similar to my opinion on Walter Benjamin. Both of them say some really interesting things, but sometimes I'm left staring at the page/screen thinking 'what the hell is going on'. In Zizek's case me having a rudimentary, at best, knowledge of Lacanian psycho-analysis is no help. However, for those of you who are subsrcibed to New Left review, he wrote an interesting article last issue, entitled Against Human Rights. Now, obviously since it was Zizek the subject matter strayed quite a lot. One thing that I really agree with him on is the role 'rights' play in depoliticising struggles, and de-linking the economic sphere from our attention. As Zizek puts it:

However, the question is: what kind of politicization do those who intervene on behalf of human rights set in motion against the powers they oppose? Do they stand for a different formulation of justice, or do they stand in opposition to collective justice projects? For example, it is clear that the us-led overthrow of Saddam Hussein, legitimized in terms of ending the suffering of the Iraqi people, was not only motivated by hard-headed politico-economic interests but also relied on a determinate idea of the political and economic conditions under which ‘freedom’ was to be delivered to the Iraqi people: liberal-democratic capitalism, insertion into the global market economy, etc. The purely humanitarian, anti-political politics of merely preventing suffering thus amounts to an implicit prohibition on elaborating a positive collective project of socio-political transformation.

However, I think that Zizek's conception of Human Rights is a bit one dimensional. Insofar as he ignores the positive impact that they can have, in terms of people's lives. This is reminscent of certain Brezhevites, who talk about 'bourgeois' political rights, which we have to counterpose to 'proletarian' economic rights. This is me is nonsense. In a very real sense all rights are bourgeois, inasmuch as their form is rooted in commodity exchange. But this does not tell us everything about their content or their effect in the material world.

Until it is possible to transcend the law it need to be vigorously contested, in line with an explicit class struggle.

However, we should try to transcend the notion of broad generalities of right, becuase (as I have already noted) these rights are indeterminate, and so can be 'captured'. An example can be taken from a recent land law lecture. Here, the lecturer was talking about a generalised 'right' or law for unproductive land to be expropriated and put to better use. Now, on the one hand, this could create good factual situations, where the poor peasantry are able to occupy and use the land of big business (a la Venezuela). Yet the very scope of such a right simulataneously allows capital the power to kick people out of their homes for 'development'.

The 'bad side' of the right is always contained as a 'potentiality' within the right itself but it needs a particular set of circumstances to actualise. What I think it would be interesting to see is how class struggle is able to demarcate the 'scope' of a right, so that its material effect is different. Becuase if content is, to a degree 'up for grabs', people like Zizek might do better to capture the content and engage in critique.

Roundup

Right, well it seems technology has a grudge against me, what with me still having no internet, that stupid post destruction and, most gallingly the oddness surrounding my laptop. Nevertheless I shall persevere with a bit of a 'news' roundup.

Firstly, and importantly, the Terrorism Bill, amended, has been published. Against the odds, they've seen reason and 'ditched' the substantive glorification offence, however, it's not dead. Obviously this merits an at least brief perusal, as it is rather important. The substantive offence of 'encouraging' terrorism is still there:

1 Encouragement of terrorism
(1) A person commits an offence if—
(a) he publishes a statement or causes another to publish a statement on his behalf; and
(b) at the time he does so—
(i) he knows or believes, or
(ii) he has reasonable grounds for believing, that members of the public to whom the statement is or is to be published are likely to understand it as a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism or Convention offences.

The offences are starting as they mean to go on, worryingly. Firstly, we see that old chestnut rearing its head 'objectivism'. The fact that you can be guilty of the offence if you have 'reasonable grounds for believing' that 'members of the public to whom the statement is or is to bepublished are likely to understand it as a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism or Convention offences' means it is irrelevant what you actually thought you were doing, the only relevant fact is what a 'reasonable person' would believe. This of course casts the net very widely, especially considering some of the latter points:

(2) For the purposes of this section the statements that are likely to be understood by members of the public as indirectly encouraging the commission or preparation of acts of terrorism or Convention offences include every statement which—
(a) glorifies the commission or preparation (whether in the past, in the future or generally) of such acts or offences; and
(b) is a statement from which those members of the public could reasonably be expected to infer that what is being glorified is being glorified as conduct that should be emulated in existing circumstances.

So glorification is back, despite Charles Clarke's assurances to the contrary and it is much the same as before. The funny thing is that this 'change' has simply smuggled the provision in through the back door. Whereas Clarke said the Bill would read:

To make a statement glorifying terrorism if the person making it believes, or has reasonable grounds for believing, that it is likely to be understood by its audience as an inducement to terrorism.

But in fact what we now find is that 'inducement to terrorism' simply includes glorification, the two proposals have simply been assimilated. Again:

(4) It is irrelevant for the purposes of subsections (1) and (2)—
(a) whether the statement relates to the commission, preparation or instigation of one or more particular acts of terrorism or Convention offences, of acts of terrorism or Convention offences of a particular description or of acts of terrorism or Convention offences generally; and
(b) whether any person is in fact encouraged or induced by the statement to commit, prepare or instigate any such act or offence.

That's right, this isn't about terrorism, this is about enemies of the state (though the former is often shorthand for the latter). But don't worry:

(5) In proceedings against a person for an offence under this section it is a defence for him to show—
(a) that he published the statement in respect of which he is charged, or caused it to be published, only in the course of the provision or use by him of a service provided electronically;
(b) that the statement neither expressed his views nor had his endorsement (whether by virtue of section 3 or otherwise); and
(c) that it was clear, in all the circumstances, that it did not express his views and (apart from the possibility of his having been given and failed to comply with a notice under subsection (3) of that section) did not have his endorsement.

If you don't really think it it's fine. Of course there are more crimes created, but I think this is the most relevant one. A lot of this might well hinge on the judicial construal of reasonable and glorify, both are these terms of rather indeterminate, and the judicary could go more than one way.

Rather heartingly (although disturbing from any legal nihilist's point of view), the judicary might well be able to stand up for themselves this time. Lord Phillips has expressed some rather strong views in a recent interview. The judicary, as of late, have been pretty good at looking after 'rights', and such a statement is nice, especially considering the heat the politicians are placing on the judicary.

What's disturbing about this is that it takes a bunch of white, middle-aged, highly educated blokes to guarantee the ability of progressive forces to organise against the wishes of our 'democratic' parliament. Such a situation does need a materialist explanation, and I hope someone will attempt it.

Of course this Bill underlines what I have been saying about this legislation from the get-go. The definition of 'terrorism', and the notion of 'glorification' are so broad, that huge swathes of people might be 'criminilised'. This means that any 'selection' of the offenders has to be done by the DPP, now I do need to read more about the DPP I admit, and I'll hopefully get a bit of info come Monday. However, there is still a very relevant point to be found here. I mean, examine this article, about academic freedom:

Jonathan Whitehead, the head of parliamentary and public affairs at the AUT, said the new clause still did not require someone to have an intent to glorify terrorism to be caught by the legislation. "A lecturer could still do it by mistake without realising it," he said.

Read the whole article, because it shows the massive indeterminacy that this sort of law will create. However, I'd suspect that most lecturers won't need to be worried, because they will be in that happy majority of people who are simply 'potential' criminals. Something tells me though that a problematic 'core' of people would be ripe for the convicting. Remember that the broad nature of this Bill would criminalise even support for the war in Iraq, this must mean there is an independent, 'non-legal' criterion to prosecution.

Now, let me explain myself further. I do not for one second take the claims of liberal legalism at face value. Firstly, the law and the rule of law are premised on violence, and since they are rooted in commodity production, they are premised on exploitation. Furthermore, I agree with the realists that law is inseparable from indeterminacy and politics. This being said, there are degrees.

Even if 'law' is indeterminate politics, it is indeterminate politics expressed a particular form. This is the form of 'formally equal' legal subjects locked into the concrete relation of dispute, governed by general laws. Now, obviously in practice there are no 'legal' reasons. But the legal form clearly provides a veneer of protection as against pure politics, this is especially so when class struggle is mediated through it.

But the current situation cannot be like this. Becuase although this content is expressed within a legal context, it makes a mockery of the legal form. This law is so broad-based that too many people will be offenders. Thus, the selection of these people can only be made with huge discretion to particular circumstance. Now, although this occurs all the time the degree to which this would happen here is startling. This means that what we are seeing is the 'selection' of people on a political basis so as to punish them. We are no longer dealing with sovereign individuals 'actively asserting' a 'right', we are dealing with a sovereign choosing people on political grounds to be punished.

When something is so broad it allows you to pick anyone, you need a new, exhaustive criteria to pick them. Whilst all laws do this none do so to such an extent. This means that the small protection afforded by the legal form has vanished. In practice many people will be eligible for detention etc., as was seen at the Labour party conferece. Furthermore, this is not some paranoid pipe dream, as historically laws have often been used for new 'purposes'.

Now, I don't wish to pull the 'cookie cutter' leftist card here, but this is a process that was extant in Nazi Germany. Here's a quote from Neumann and Kirchheimer's The Rule of Law Under Seige (p. 138):

'If the general law is the fundamental form of law and if the law is not only voluntas but also ratio, then one must state that the law of the authoritarian state has no legal character. Law as a phenomenon is only possible if it manifests itself as general law. In a society that cannot dispense with law complete gnerality of law is impossible. The limited, formal, and negative generality of law under liberalism not only makes possible capitalistic culpability but also guarantees a minimum of liberty...[In the authortarian state] general law and contract disappear and are replaced by individual measures on the part of the sovereign'

Of course, there are differences here. Firstly, the 'individual measures' are mediated by making the law too broad (note broad and 'general' are not the same thing). Secondly, Neumann traced this trend (as the CLS movement also does) to the increasing monopolisation of capitalism, the growth in state economic intervention and the fusion of state and monopoly power. Whilst I believe such a trend is evident, this legislation, in such an exaggerated form is clearly the result of a specific historical conjuncture.

Anyway, more news when I get it.

Damn it!

Ok, I just had a nice long post, which I somehow managed to lose, I will re-write it as and when but I am probably too annoyed to do it just now, rest assured it'll be up though.

Terrorism, terrorism, terrorism

Over six hundred people were detained under the Terrorism Act 2000.

Well, as I've said before all of the current legislation used to 'fight terrorism' is so ridiculously broad that it can be used for virtually any purpose. The '[a]nti-Iraq war protesters, anti-Blairite OAPs and conference delegates' were all searched under section 44 of the Act, even though 'none of them was suspected of terrorist links'. Section 44 of the Act reads:


44. - (1) An authorisation under this subsection authorises any constable in uniform to stop a vehicle in an area or at a place specified in the authorisation and to search-

(a) the vehicle;

(b) the driver of the vehicle;

(c) a passenger in the vehicle;

(d) anything in or on the vehicle or carried by the driver or a passenger.

(2) An authorisation under this subsection authorises any constable in uniform to stop a pedestrian in an area or at a place specified in the authorisation and to search-

(a) the pedestrian;

(b) anything carried by him.

(3) An authorisation under subsection (1) or (2) may be given only if the person giving it considers it expedient for the prevention of acts of terrorism.

(4) An authorisation may be given-

(a) where the specified area or place is the whole or part of a police area outside Northern Ireland other than one mentioned in paragraph (b) or (c), by a police officer for the area who is of at least the rank of assistant chief constable;

(b) where the specified area or place is the whole or part of the metropolitan police district, by a police officer for the district who is of at least the rank of commander of the metropolitan police;

(c) where the specified area or place is the whole or part of the City of London, by a police officer for the City who is of at least the rank of commander in the City of London police force;

(d) where the specified area or place is the whole or part of Northern Ireland, by a member of the Royal Ulster Constabulary who is of at least the rank of assistant chief constable.

(5) If an authorisation is given orally, the person giving it shall confirm it in writing as soon as is reasonably practicable.

The 'problem' with this is that it is all too vague. Bearing in mind that 'terrorism' is the use of 'violence' for a political end the police, in terms of the statute, were acting perfectly legally. However, even if the police are being 'unreasonable', the law is a lived, material reality, if the police are allowed to do such a thing then the 'accurate' interpretation of the statute is ultimately rooted in what the police do, this is the position that a materialist must take.

What would be interesting to look at is how widespread the tendency towards broadness is. Becuase if such a broadness does tend to undermine the legal form, we can draw important theoretical conclusions about late capitalism.

Normal service will resume shortly

I'm currently undergoing a transitional period, since my bloody university room has no internet access, this is not a huge problem but it will mean that I might need a while to do stuff, anyway I'll try and get something up tomorrow, as I am enjoying this, even if you all aren't.

Some more thoughts on rights

“Real rules”, then, if I had my way with words would by legal scientists be called the practices of the courts, and not “rules” at all. And statements of “rights” would be statements of likelihood that in a given situation a certain type of court action loomed in the offing.
Karl Llewellyn 1930, ‘A Realistic Jurisprudence: The Next Step’, 30 Columbia Law Review 431, p. 448

Karl Llewellyn was one of the leading legal realists, a movement in which I have grown very interested. As I will later try to show one can make a close link between Marxist materialism and the legal realists, a project which I am currently attempting. Llewellyn’s statement here can be viewed as a continuation of my previous post on rights, and a springboard for further discussion.

The statement, , is a perfect expression of a materialist conception of the law, in two meaningful senses. Firstly, Llewellyn seems to be expressing the same notion as Pashukanis, that a right, materially speaking, is only a right insofar as it is embodied in actual social practice, i.e. if it actually ‘regulates’ conduct. Thus, for Llewellyn a right is in fact a ‘description’ of the likelihood of a certain type of social practice prevailing over the other.

Secondly, and with a bit more extrapolation, Llewellyn is further saying that a right must be judged by its material effects. Of course, such a point is similar to the above, but different enough to be considered in its own right. I think the point here is that with the focus on ‘a certain type of court action’ we move into the terrain of interpretation. Let me explain, the ‘right’ to freedom of speech is prima facie seen as allowing people to express their opinions, yet in the US, if one examines the ‘court actions’ that take place under its auspices, a different story emerges.

Now, I don’t profess to be an expert on US law (frankly, I don’t profess to be an expert on anything), however, I do know that the constitutional guarantee to free speech has been used to allow corporations to make unlimited donations to political parties, so as to guarantee their ‘free speech’. If one takes Llewellyn’s position an examines a right through its manifestation in the court, and so ultimately its manifestation in social practice, suddenly the ‘right’ to free speech becomes a mite more complex.

What this also brings into play is Lenin’s much maligned polemic on freedom, his opinion being:

“Freedom yes, but for whom? To do what?”

Lenin’s retort is a blunt expression of a materialist conception of ‘freedom’, as embodied in ‘rights’. Every right, is a right insofar as it is actualised, but merely noting that it is enforced is not enough, one must note the situations in which it is enforced, what is the right really a right to do? This is the problem with ‘rights consciousness’, and any adoption of it.

Therefore, when we examine a right from a materialist perspective we included within it are all of the ways in which it manifests itself socially. This is because the right has to be seen as a social relation, not a thing-in-itself, but a form of social regulation as embodied in the interaction between legal subjects. This of course leads to the conclusion that the process of interpretation, the way that a particular ‘law’ is interpreted and enforced, in a dispute is hugely important, much more important that what a particular ‘law’ or ‘right’ says ‘on paper’.

By taking the term ‘rights’ at face value we will almost always divert our attention away from a materialist analysis. When we begin to see rights as abstract entities, good in and of themselves, we forget that a right is merely ‘a state[ment] of likelihood that in a given situation a certain type of court action loom[s]’. If one forget this fact there is a tendency to dissociate rights from their material manifestations, their consequences. Such a tendency can only be detrimental, as one need only observe the numerous ways in which seemingly ‘progressive’ rights are put towards reactionary uses. Witness the BNP framing their resistance in terms of ‘freedom of speech’, witness the invasion of Yugoslavia on the basis of ‘human rights’, when one stops analysing rights in a materialist fashion, stops looking at their material actualisation, and simply promotes rights, one may well end up legitimising domination.

And one cannot simply say that these reactionary uses of rights are some kind of ‘perversion’. Certainly these actions are potentialities contained within these general rights, and the very fact that they are manifested materially proves that they are not a perversion. They might well be contingent, in that their actualisation is not guaranteed, but they are certainly internal to the right, and probably internal to the very notion of rights.

Some more aimless ramblings on the 'glorification of terror'

A lot of people have pointed out that the definition of 'terrorism' in the Terrorism Act is so broad that it encompasses way too much. In particular the definition could easily be applied to the global 'good guys' and their actions in the war against terror. In fact, the term 'war against terror' is probably the perfect example of what 'terrorism' means in the Act, as it is clearly advocating political violence.

However, all prosecutions made under Charles Clarke's bill will be at the discretion of the Director of Public Prosecutions, part of the CPS, which is the governmental judicial arm. Chris Lightfoot impeccably shows the logic of the bill:

So that's alright then: make everything illegal, and only prosecute the people you don't like. Top work.

(My one problem with this statement is the notion that 'everything is illegal'. Whilst I agree everything is potentially illegal, unless a norm is enforced we can hardly call that which it 'condemns' illegal, a law is only a law insofar as it is actualised in particular material situations).

This is then fogged up by the government claiming, very sensibly that people already know what terrorism means. But this is simply untrue. What is actually being created is a system whereby the state can pick and choose its enemies, before throwing them in the slammer. The brilliance of the scheme lies in its simulataneously broad and particular nature. Due to the language of the staute most people who take an interest in politics, and particularly international politics could be criminalised (inasmuch as politics is always potentially 'violent') but discretion is vested in the state, hence each prosecution will be even more particular than normal.

This means that the law resembles a series of discrete decrees rather than a law with particular enemies of the state being carted off as and when necessary. This is the sort of law that is completely opposed to bourgeois notions of the 'rule of law', since it is so wide it is virtually impossible to 'plan your life' by it.

In fact I'd say this is the sort of law that show late capitalism begins to erode the legal form, in that it is very diffucult to see how this is a 'general law' binding on legal, formally equal subjects and not a discretionary piece of 'adminstration' or the pure particularistic command on the part of the 'sovereign'.

Rights?

Finally I should note a troublesome consequence of the reification of rights. Once my experience in marching to oppose U.S. intervention in Central America is transformed into an example of exercising a right, I may find myself pulled in direction that I would resist were I to confront the issues directly. Having thought of myself as exercising a right to free speech, I will find myself asking whether the Nazis in Skokie or pornographers also have rights to free speech of course one can resist this pressure by defining the right to free in one way rather than another. Or one can concede the need to protect the “rights” of Nazis and pornographers as a prophylatctic in a society in general devoted to advancing the cause of the party of humanity. But the problem arises because of the reification of right in the first instance. If we treated our experiences of solidarity and individuality as directly relevant to our political discussions, instead of passing them through the filter of the language of rights, we would be in a better position to address the political issues on the appropriate level.
Mark Tushnet, 1984 “An Essay on Rights.” 62 Texas Law Review 1363.

I find this critique of rights talk to be fascinating, and the logic here is one of the reasons why I am trying to move away from phrasing things in terms of 'rights'. I think Tushnet raises a good point here, and one that is clearly related to Marcuse's repressive tolerance. I personally am not a liberal, and am certainly not Voltaire, there is no way in hell I would 'die' for the Nazi's right to hurl rascist insults. I think this notion is something the left does need to think about, especially now.

In times of weakness it does seem that the left falls back on the notion of 'rights', to put forward its demands and to protect itself. But the question remains should the left be committed to a 'right' of free speech, or should it adopt the Marcusian solution. Of course, Marcuse's ideas attract a lot of criticism, and they are pointed towards as an example of left totalitarianism etc., though as Marcuse says :

I hope that nothing in my essay on tolerance suggests that I repudiate every sort of tolerance. That seems to me such idiocy, that I cannot understand how such an interpretation [99] has come into being. What I meant and said was that there are movements, which manifest themselves in propaganda as well as action, of which it can be predicted with the greatest certainty that they will lead to an increase of repression and destruction. These movements should not be tolerated within the framework of democracy. Here is a classic example: I believe that if, in the Weimar Republic, the Nazi movement had not been tolerated once it had revealed its character, which was quite early, if it had not enjoyed the blessings of that democracy, then we probably would not have experienced the horrors of the Second World War and some other horrors as well. There is an unequivocal criterion according to which we can say: here are movements that should not be tolerated if an improvement and pacification of human life is to be attained.

I think these notions call for a rethinking of 'rights talk' in the broader British left. Now of course critiquing this is not a new thing, as is evidenced by the dates of these works, however, the British left has never really thought through such criticisms. This is especially important when we look at the ever more repressive laws coming out of Parliament, we need to question we oppose them. Because remember even the BNP disputes its 'persecution' on the basis of 'freedom of speech', I'm not saying we should give up on 'rights' (though I probably think we should), merely that we at least give the concept a bit of thought.

Lib Dems being nice and sensible

The Guardian reports

Turning in his speech to proposed new offence of glorifying terrorism - in addition to announced measures on indirect incitement to terrorism and acts preparatory to terrorism - Mr Oaten declared his absolute opposition.

Pacing the stage in the Empress Ballroom as he delivered the speech, he said: "We can't support a wide and vague offence that allows glorification of terror to become a crime.

"What on earth does that mean? One person's terrorist is another's freedom fighter.

Precisely, especially given the unnecessarily broad definition of 'terrorism', and in fact 'glorify'. One also wonders if the phrase 'one man's terrorist is another man's freedom fighter', might itself be crminalised, after all calling someone a 'freedom fighter' sure sounds like 'glorification' to me.

"This is a dangerous proposal hard to define in theory, unworkable in practice and putting freedom of speech at risk."

I agree that it is dangerous, and hard to define. But somehow I doubt it's unworkable. In fact I'd say such a statute, being so indeterminate, could be beautifully workable, inasmuch as it can snare anyone the government wants, provided the judges don't play up.

And, freedom of speech? Hmmm, I oppose 'rights-talk' so...

His speech was repeatedly interrupted by applause from the grass roots, not least when he declared he was "proud to be a liberal in these difficult times because I know our values are the values that can defeat terrorists."

Nicely indicative that it might be possible to get some kind of mass opposition to this rubbish. Though again, the liberal talk is somewhat sickening.

Hopefully, this will be indicative of a trend, The left really doesn't need this bill to be passed, and the stirring amongst the Lib Dems show at least the germs of some kind of counter to this movement. My main worry is that these civil libertarians are going to be horribly compromised by any smears they receive, because we all know accusations will fly about being 'soft on terrorism'.

I mean look at Liberty's constant hedging after the '7/7' (godawful term). They don't want to go too far, lest they offend people, this is the same rationale behind Howard's warning to the judges, once a tragedy happens, criticism is stifled in more ways than one.

Terrorism Bill

Right, so the Guardian has a draft of the Bill up, I will briefly peruse through some of its aspects, and consider the implications:

Encouragement of terrorism
(1) A person commits an offence if he—
(a) publishes a statement or causes another to publish a statement on his
behalf; and
(b) at the time he does so, knows or believes, or has reasonable grounds for believing, that members of the public to whom the statement is or is to be published are likely to understand it as a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism or Convention offences.

Furthermore:

(3) It is irrelevant for the purposes of subsection (1)—
(a) whether the statement is likely to be understood as an encouragement or other inducement to the commission, preparation or instigation of one or more particular acts of terrorism or Convention offences, of acts of terrorism or Convention offences of a particular description or of acts of terrorism or Convention offences generally; and
(b) whether any person is in fact encouraged or induced by the statement to commit, prepare or instigate any such act or offence.

Note however:

(4) In proceedings against a person for an offence under this section it is a defence
for him to show—
(a) that he published the statement in respect of which he is charged, or caused it to be published, in the course of providing a service electronically;
(b) that, in publishing it or causing it to be published, he acted on behalf of another, or did no more than make available a facility giving access to the statement;
(c) that the statement neither expressed his views nor had his endorsement; and
(d) that it was clear, in all the circumstances, that it did not.

So, if you are providing a 'service' electronically, or don't really think it, it's not an offence.

Onto the next salient offence:

(1) A person commits an offence if—
(a) he publishes a statement or causes another to publish a statement on his
behalf;
(b) the statement glorifies, exalts or celebrates the commission, preparation or instigation (whether in the past, in the future or generally) of acts of terrorism; and
(c) the circumstances and manner of the statement’s publication (taken together with its contents) are such that it would be reasonable for members of the public to whom it is published to assume that the statement expresses the views of that person or has his endorsement.
(2) It is irrelevant for the purposes of subsection (1) whether what is glorified, exalted or celebrated is the commission, preparation or instigation of one or more particular acts of terrorism, of acts of terrorism of a particular description or of acts of terrorism generally.
(3) A person is guilty of an offence under this section in respect of a statement glorifying, exalting or celebrating anything occurring more than 20 years before the publication of the statement only if the statement relates, whether directly or indirectly, to conduct or events specified for the purposes of this section by order made by the Secretary of State.

It seems to me that the latter is the more worrying of the offences, but I'll deal with the former first.

Right, to begin with this offence is very very vague, which could actually be a good thing. The first point to make is that it's quite disturbing that you need only 'reasonable ground to believe' that what you publish will directly or indirectly encourage terrorism. This means that you might not intend for what you are publishing to encourage terrorism, but you might realise it could. And if you realise it could, you're in trouble.

The next worriying part is this 'directly' or 'indirectly' business, this, combined with the above, seems to potentially criminalise a hell of a lot. Bearing in mind that the definition of terrorism what I posted previously the Iraqi resistance is a terrorist organisation. If the SWP in its Socialist Worker were to pubish an article saying 'the war is illegal' and therefore 'resistance is legitimate' surely this is an 'indirect' encourage, hell, simply saying the war is illegal or immoral seems to open us up to 'indirectly' encouraging 'terrorism'. Also the fact that no one need actually be incited is a worrying proposition as, in essence, it is not action that is being criminalised but mere publication.

The defences seem a little woolly, frankly I have no idea what 'in the course of providing a service electronically' means, what is a 'service'? Presumably this is there to cover news on the TV and internet etc. where publishing news about coalition abuses in Iraq might be seen as 'indirect' encouragement. But this surely wouldn't protect newspapers (though they might have the defence of not endorsing such views). And none of this protects the anti-war movement.

The glorification of terrorism offence is even more worrying. What especially concerns me here is that any support fo violent resistance now seems dead in the water. So for instance (not effected I know but still relevant) Monthly Review has an article about the Nepalese Maoists, stating:

The revolutionary forces in Nepal led by the Communist Party of Nepal (Maoist) have been engaged in a country-wide people’s war (“jana youdha”) against the royal government. Much of the country has been liberated.

Well, the Maoists certainly fit the bill as far as defintions of terrorism go in the Act. And liberated! LIBERATED!? Surely that is glorification or celebration not to mention the fact that the article is all about a successful attack on a government target. This sort of publication would therefore be criminalised under the Bill and there is no defence to this.

I don't want to phrase this in terms of abstract 'rights' discourse, but rather by its concrete effects today. Such a law can only serve to criminalise and delegitimise anyone who supports any kind of violent resistance. Obviously this is goin to hit Muslims hard, but it also has the possibility of hitting the anti-war movement, and the broader left as a whole.

Therefore this law needs to be combatted. Now I'm not some kind of organsational genius butI do have some suggestions:

1) There need to be a poltical mobilisation right now lobbying MPs, protesting etc. Such a movement can be based up a broad coalition, and we should ally with virtually everyone. Particularly the civil libertarian organistions that exist (Liberty, etc,) and any libertarian parliamentarians, this unity is only on the basis of a single issue, much like the No2ID campaign.

2) Should a law be passed then it needs to be opposed in court. Because the wording is loose there is a possibilty that the judges will interpret it narrowly, so as to protect 'free speech'. In order to make sure this happends we need to keep up the pressure, and left leaning lawyers (there are a few)/libertarian lawyers will be needed.

3) There is also the possibility (slim perhaps) that such a law can be challenged under the Human Rights Act. On the basis of A v. Secretary of State for the Home Department any derogation from the ECHR must be proportionate, this means:

a) there must a threat to the life of the nation
b) there must a legitimate aim to the interference with the 'right'
c) the means must be rationally related to the end
d) there must not be an excessive or arbitrary imapct

Following the London Bombings A and B would certainly be fufilled. I'd also imagine that the London bombings mean the judges will be very careful not to interfere with 'terrorism prevention' (see e.g. Michael Howard's 'warning').

This is all very disturbing.

Defining Terrorism

Terrorism Act 2000:

1. - (1) In this Act "terrorism" means the use or threat of action where-
	(a) the action falls within subsection (2),
	(b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and
	(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.
	(2) Action falls within this subsection if it-
	(a) involves serious violence against a person,
	(b) involves serious damage to property,
	(c) endangers a person's life, other than that of the person committing the action,
	(d) creates a serious risk to the health or safety of the public or a section of the public, or
	(e) is designed seriously to interfere with or seriously to disrupt an electronic system.
	(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.
	(4) In this section-
	(a) "action" includes action outside the United Kingdom,
	(b) a reference to any person or to property is a reference to any person, or to property, wherever situated,
	(c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and
	(d) "the government" means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.
	(5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.

So, if we keep this as our provisional definition or terrorism, and combine it with the statements made by Clarke, everyone should be opposing this law. Now, obviously this definition could be applied to pretty much any military action taken by a government, but since this is at the DPP's dicretion, this is not likely to happen.

But, assuming this definition holds, think of what it will be illegal to do. Clearly all the resistance movements in the world today fall under this definition of terrorism, so proclaiming their 'right' to resist might well become illegal. Now, of course it will be said that this is only temporary, and will only be used against Muslim extremists. DON'T BUY IT. The apparently temporary public order act, prohibiting the use of political uniforms, so as to combat the fascists was used against the IRA god knows how many years later. Right, more on this later, but work awaits.

Base, Superstructure and the Property Problem

One common criticism that Marxism has constantly faced is its notion of the base-superstructure model and the relation of ‘material’ (base) and ‘legal’ (superstructure) relationships. This is well emphasised by a quote Acton, one with which GA Cohen attempted to tangle:

[T]he “material or economic basis of society” is not ... something that can be clearly conceived, still less observed, apart from the legal, moral and political relationships of men.
HB Acton, The Illusion of the Epoch

In accordance with the general thrust of this blog (notwithstanding a few aberrations) I am not going to focus on ‘morality’ and its relation to the ‘economic structure’ of society. Instead my primary focus will be on the response of Marxian legal theory to such a criticism, and I will then propose my own interpretation of the problem. It is possible to find several categories of people who attempt to refute this thesis, in essence we have two ‘camps’; the ‘separationists’ and the ‘imbricationists’.

Separationists

The ‘separationists’ are a fairly broad camp, and contain several theoretical currents. The main theoretical accounts are by the analytical Marxists and the French Maoists (who were decidedly influenced by Althusser). I have to admit that at one point I was essentially aligned with the French Maoists, in fact I wrote a very sympathetic account of their conception of ‘possession’ and I intend to keep several elements of their analyses.

What is common of both ‘camps’ of the separationists is their notion that legal ownership and effective ownership are conceptually separable. GA Cohen develops the notion of ‘powers over’ rather than legal rights, whereby one can ‘effectively own’ property, without having a legal protection of it. Legal ownership therefore grows from effective ownership, and recognises that which materially exists. The Maoists followed a similar line, positing that the legal superstructure of capitalist society was clearly conceptually separable from the economic base.

However, this approach was open to some very materialist criticism, in that their account served merely as a way to ‘[t]o vindicat[e] a wholly abstract commitment to ‘materialist’ world view’, as Karl Klare put it:

There is simply no “prelegal” realm of social life to which legal outcomes can be referred, at least not in this modern age. A particularly embarrassing case of circularity is the ease with which we are told that legal outcomes and processes derive from the underlying relations of production or property ownership, as though production relations or property could meaningfully be defined without reference to legal rules.
Karl Klare, Critical Theory and Labor Relations Law, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 61 (David Kairys ed., 1990), p. 67.

Even if it is entirely possible separate legal and economic relations, such an approach seems to have little or no ‘reflection’ in real life, where social relations are expressed in legal terms. This criticism, is not fatal to the idea of a separateness of legal and economic relations, provided one abandons the precise insights of the ‘separationists’.

Imbricationists

In many ways these people can be seen as a direct reaction to what they saw as the vulgar, abstract theorising of the separationists. Perhaps the most famous of these is EP Thompson, with his wonderful tirade against Althusser vis-à-vis the law:

[L]aw did not keep politely to a ‘level’ but was at every bloody level; it was imbricated within the mode of production and productive relations themselves (as property-rights, definitions of agrarian practice).
Thompson, Edward 1995 [1978], The Poverty of Theory, London: Merlin Press, p. 130

I don’t think I can add much more to what Thompson said, but I would also point out the sophisticated account of Derek Sayer in his The Violence of Abstraction:

In the real world, then, ‘power’ over objects turns out to be neither the abstraction, nor the simple relationship, of Cohen’s impeccably rechtsfret’ definition. It exists only in a multiplicity of often rechtsvoll empirical forms, to whose analysis, if Thompson is correct, a categorical framework built on prior and exclusive definitions of supposed social ‘levels’ is remarkably ill-suited. In certain cases, like England in the eighteenth century, law will emerge as inextricably ‘imbricated within’ — indeed constitutive of — any property relations we might want to consider relations of production, ‘part of the same nexus of relationship’. So too might other supposedly superstructural ‘instances’, like moral codes, political institutions, or ‘forms of social consciousness’ (all of which are fairly evidently entailed in Smith’s ‘orderly oppression’). In which case, to seek to expunge these from the concept of property or production relations a priori, for the sake of theoretical coherence or elegance, would seem to be a gross artificiality which does considerable violence to the very facts Marx’s concepts are meant to help us understand: a species of what he himself castigated as ‘violent abstraction’.
Derek Sayer, The Violence of Abstraction

Although this is a long quote I think it shows very well the approach that the imbricationists take, and the fact that their conception of social life is grounded in material right. Of course the problem here is that there is a danger of throwing the baby out with the bathwater, as such an approach can end up essentially abandoning Marxism’s distinctive approach, and surrendering to an idealist ‘Marxism’.

Defence of the separationists

As I said before the proposition that there is a conceptual separability between effective ownership and legal ownership is not as indefensible as it might at first seem. Rather than an abstract vindication of a materialist world-view I would argue that the notion of ‘effective ownership’ is the theoretical manifestation of a particular historical conjuncture. I am talking here of the USSR, and its degeneration.

The separationist account (from here the Bettleheim thesis) is a corollary to the experience of the dictatorship of the proletariat that every Marxist must arrive at, this is for two different reasons. Firstly, if one were to hold that the possession and ownership were not separable then one must conclude that the USSR was a socialist society (deformed or not), until some time around the Gorbachev years. Of course this is the position of orthodox Trotskyism, yet in terms of a coherent account it is impossible to maintain it. The central notion here is that of the bureaucracy in the Soviet Union. Marxists of many hues, Hoxhaites, Maoists, Trotskyists of the Cliffite variety and the council communist school have all held that the bureaucracy in the Soviet Union was, even before the rise of Gorbachev, able to constitute itself as a new bourgeoisie.

There was no obvious, official, legal relation between the new bourgeoisie and the means of production, nevertheless they were able to appropriate surplus value, and so there was clearly a capital-labour relation and therefore some kind of effective ‘ownership’.

The bureaucracy, by its social position, was able to appropriate the surplus value realised by the state enterprises, furthermore, labour essentially became a commodity and managers had effective ownership over the means of production. Some of these changes were of course enabled by small changes in the law, yet the fact remains that the bureaucracy’s social position was not legally sanctioned until the Gorbachev years. This inevitably leads to the conclusion that capitalist social relations can exist without capitalist legal relations. In fact they can exist within socialist legal relations.

If one holds to the contrary incoherent consequences result. Firstly, one can only explain the degeneration of the Soviet Union as a “big bang”, and one will not be able to make concrete references to the changes in “property forms” and social relations that occurred, since these cannot be explained by changes in the law. Secondly, and perhaps more importantly from the perspective of praxis, if one does not acknowledge that the bureaucracy can establish itself independently of the law, that legal relations do not always reflect property relationships, how can one struggle against capitalist restoration? In fact, how can one even know it is going on? A commitment to the separability of legal and material relations leads not to abstract theory but a guide to the concrete class struggle and an identification of what needs to be struggled against.

Secondly, the Bettleheim thesis allows Marxism to fulfil its role as a “guide to action” in another way. When the dictatorship of the proletariat is first established it has a certain series of tasks it must fulfil. Chief amongst these is the nationalisation of the means of production. Yet nationalisation is not socialism. Those who hold to the inseparability of material and legal relations tend to mechanically identify socialism with nationalisation, viz. they identify legal content with social content. However, in terms of Marxian socialism, this is simply not true; nationalisation is merely the first step on the road to socialism and eventually communism:

[Trotsky] defined the dictatorship of the proletariat by the state ownership of the means of production. In that case, the Asiatic mode of production of the ancient civilisations of Mesopotamia, Egypt, Greece and Peru etc., would have been socialist prototypes; modern Egypt would be a dictatorship of the proletariat
Kostas Mavrakis, On Trotskyism, p. 77

More than that, socialism must be defined as the transition to communism and the abolition of the exploitation of man by man. In this sense one cannot define socialism legally, as in nationalisation, but politically and economically, through the increasing socialisation and interdependence of the economy, the growth of the productive forces and the extension of power to the masses. Nationalisation is not socialisation, nationalisation as a legal form is perfectly compatible with capitalism, and has been in the past. Thus, again we see this is not an abstract theoretical conception, but in fact represents the concrete content of the dictatorship of the proletariat.

But surely what I have said goes too far in defending the separability thesis? Perhaps it does, especially as what we are describing in an exceptional situation. This is why I seek a transcendence of this ‘dichotomy’ through Pashukanis, Stone and Miéville.

Going beyond the divide

As I have previously state China Miéville, rather than taking either approach, insists that the law must be viewed as a broad social phenomenon. China puts forward the position that Pashukanis’ approach leads to law as being part of both the base and the superstructure:

It is thus misleading to claim that Pashukanis sees ‘law’ as part of the base, or part of the superstructure. ‘Law’ is a complex of social relations, norms, rules and formal proceeds which, under capitalism, straddles both levels of society.
C. Miéville, Between Equal Rights, p.96

Miéville holds therefore that the legal form, which is embedded in the very structure of the commodity, is part of the base. Alan Stone, in his wonderful article ‘The Place of Law in the Marxian Structure-Superstructure Archetype’, argues that Marx had a similar position on particular legal relations. Stone posits that some legal relations are the ‘essential legal relations’ that are the direct actualisation of material relations in the 'legal realm':

At a certain stage of development, the material productive forces of society come into conflict with the existing relations of production or — this merely expresses the same thing in legal terms — with the property relations within the framework of which they have operated hitherto.
Karl Marx, Critique of Political Economy

A sophisticated approach therefore sees that certain legal relations are organic to the commodity form, and are therefore immediately expressed in the legal form. For example punishment for theft, is part of the violence embedded in the commodity form, and is violence directly expressed in the legal form, without necessary mediation in the legal superstructure. The same is true of basic property relations and contract law, those forms of law that are mere ‘economic reflexes’.

Miéville shows that we need not have a state authority for there to be a law-ness to social relations, rather the law-ness is embodied in the legal form and the violence that constitutes this law-ness can come from either the state or the legal subject. Of course the law-creating character of the violence of the legal subject is only law in its primitive form, a law not yet illuminated by the legal superstructure.

What this approach tells us is that effective ownership is already a type of law-ness. Thus effective ownership, as part of the economic base of society, takes occupies the legal form in its most immediate actualisation, even though it is not yet present in the legal superstructure. This in turn solves shows the real interaction between form, content, base and superstructure. These contents are the contents which truly embody the legal form, and in fact serve as the first articulation of the legal form. Since there is such an unmediated identity between form and content here, these ‘contents’ serve as the base of capitalist society. As Stone notes these legal relations, have a series of superstructural relations that derive from their basis, these superstructural relations can be questioned and changed, but when the essential legal relations are widely challenged we know capitalist social relations are in trouble.

However, there is one problem that remains here. Since we have two levels of the law, i.e. the legal form and the legal superstructure, how is it some times the latter is in contradiction with the former? As with the example of the USSR, but more generally in the development of capitalism, why is it that the ‘legal base’ was not identical with the ‘legal superstructure’.

Firstly I think we need to note the Marxian conception of social development, whereby new social relations grow up within the old, the ‘old’ social system provides the material prerequisites for the development of the new, and the new is able to ‘mature’ within the new. This means that there will be periods in which new legal relations are developing, due to the proliferation of commodity production. Therefore, there will be a period where different legal contents exist within the legal form, as classes, and the productive relations they represent struggle amongst themselves.

This can lead to a situation where the ‘legal base’ of one type of social system has triumphed but it has not yet been recognised in the superstructure. Only when the legal superstructure recognises this, has the transition been truly completed:

[B]ourgeois capitalist property ceases to be a weak, unstable and purely factual possession, which at any moment may be disputed and must be defended vi et armis. It turns into an absolute, immovable right which follows the object everywhere that chance carried it and which from the time that bourgeois civilization affirmed its authority over the whole globe, is protected in its every corner by laws, police, courts.
E.B. Pashukanis, General Theory of Law and Marxism, p. 78

Thus we need to recognise that any notion of ‘effective ownership’ has to grapple with the fact that by far the best guarantee of effective ownership is the legal superstructure, and that even the basic notion of the individual securing his property is violence with a legal character.

What should also be noted is the materialist approach to norms holds that the norm is norm insofar as it effects, or reflects material relationships or trends:

A norm as such, i.e. in its logical content, either is directly derived from existing relationships already or, if it is published as statutory law, then it presents itself only as a symptom by which one may assess, with some degree of probability, the likely emergence of the corresponding relationships in the near future. It is not sufficient to know the normative content of law in order to confirm its objective existence. It is necessary to know if this normative content is realized in practice, that is in social relationships.
E.B. Pashukanis, General Theory of Law and Marxism, p. 63

This again shows us how to transcend the narrow boundaries of the two approaches outlined above. We can see that the apparent socialist norms of the USSR were not realised in practice, in actual fact they were in opposition to the concrete practice of the bureaucracy, whose appropriation of surplus value constituted the embryonic embodiment of the new legal superstructure, but had already been actualised through the legal form. This also provides an explanation for the growth of capitalism within other social formations.

Of course, there needs to be further explanation as to why the legal superstructure remained as it did for so long. There are two possibilities here. One is that of superstructural inertia, i.e. it takes time for the legal superstructure to develop norms that are already expressed at a more primitive level. Of course, since the USSR was always a transitional social formation, several of the essential legal relations of capitalism were already present, their role was simply expanded. One might also argue that law, as site and instrument of class struggle, was used here to mystify actually existing social relations, what better way to exploit the proletariat than under the veil of socialism?

I will also later make a post on whether socialist ‘property’ relations can be posited legally, as I think this is something that needs to be brought forward.