Sunday, November 27, 2005

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.

Thursday, November 24, 2005

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.

Friday, November 18, 2005


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.

Wednesday, November 09, 2005

Blair defeated on 90 days

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

Sunday, November 06, 2005

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?

Thursday, November 03, 2005


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."

Wednesday, November 02, 2005


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.

Tuesday, November 01, 2005

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.