Just a tiny post of little worth (more substantive stuff coming soon - I promise; and who could resist a 'principled opportunism'/natural law post, and something on left liberalism/republican freedom), I was just reading this article about the new counter-terrorism stuff (although the Guardian headline is ridiculous, clearly the confrontation with the Muslim Council doesn't overshadow the launch of an anti-terror strategy, it's absolutely integral to it), anyway, this got me thinking about the relationship between the external war on terror and the internal war on terror.
As I've constantly stressed, what I find most important about the war on terror is the way that it gives a select group of states the ability to intervene - seemingly with impunity - in a temporally and spatially unlimited way, seemingly against anyone, but practically against a certain number of target states (whose ranks swell and shrink according to needs). However, as I have also noted there has been a shift in emphasising that a whole range of 'intervention' options are open, quite apart from just military force (although let's not pretend that the war on terror didn't always involve these options becaus it did). The situation is thus created whereby states can 'intervene' (broadly construed) in those states that are in some way 'at risk' of generating terrorism, or harbouring terrorists. This obviously involves constructing some kind of 'model' (e.g. the 'rogue state') which has certain objective characteristics that produce terrorism. In order to prevent this these states have to be transformed, or contained - as such 'liberal' interventionism is a key aspect of the war on terror.
What's interesting is the way that this is reflected in domestic life, especially in the UK. This is seen above all in anti-terror legislation, which increasingly concerns itself not with terrorist acts - but with support, glorification and radicalisation, what I've always found fascinating about the anti-terror laws is the wa in which the definition of terrorism is so ridiculously broad as to potentially cover any number of activities, in this way the potential for unlimited intervention, which we see internationally, is produced internally as well.
But more disturbing is surely all of this counter-terrorism strategy stuff. Because here, it's not concerned with regulating acts (and most of the anti-terror stuff was concerned with acts, even if it is with acts which clearly ought not to be criminalised) but with creating subjects. Counter-terrorism strategies are obsessed with looking at what 'causes' someone to 'become' a terrorist. The aim is to intervene and stop these processes. This is - of course - the perfect complement to the war on terror's liberal interventionism abroad; in both circumstances the intervention can seemingly go unchecked in its quest to create liberal subjects.
This focus is - I think - very important. Because of course the point is that those 'objective characteristics' which produce terrorism (or what we would think of as terrorism) are often the self-same conditions that produce political radicalism. When this is combined with the broad sweep definitions of anti-terrorism, the state can quite legitimately police the radical left under the aegis of anti-terrorism, indeed, as Alberto Toscano has astutely noted a propos the Tarnac Nine, any radical political activism can be portrayed as a type of 'pre-terrorism'.
This is obviously why we also need to question the declared purpose of anti-terror legislation. Internationally, I would argue that one of the driving forces behind the war on terror has been the decline in the imperial power of the US and its attempt to legally entrench a hegemonic coalition. Might anti-terror legislation 'at home' serve a similar function insofar as it legitimates a vast extension of state power into social and political life. Furthermore, is it not telling that anti-terror legislation has found its greatest use not against terrorists, but against left critics of the government in times when its legitimacy is in crisis.
Of course, this doesn't mean the argument is in bad faith. Perhaps (and indeed this seems probable) from the perspective of liberal-democratic capitalism anyone who opposes in a radical way this state of affairs is - at the very least - a potential terrorist. This in fact seems to be the message that underlies a whole host of legislation, action plans, school sylabuses and in fact the entire 'citizenship' course (which school children have shoved down their throats).
Wednesday, March 25, 2009
Tuesday, March 24, 2009
Speaking of socio-economic rights...
...and their uselessness, this caught my eye:
Heh. I've spoke about Straw before (indeed on this very issue) and the man has a knack for appearing to say/do something whilst actually saying/doing nothing at all.
I think the big question is can there be a politics of 'rights' that represents a permanent, collective intervention of the oppressed into the political scence. And would such a politics of rights not represent a transcendence of rights as we know them?
Straw's green paper makes clear that while a bill of rights would extend the coverage of the Human Rights Act to social and economic rights, such as free healthcare, it would stop short of making them newly legally enforceable in the courts.
Instead Straw hopes that by bringing together existing social and economic rights "currently scattered across the UK's legal and political landscape" in one collected document he will be able to "entrench progressive values for the long term".
Heh. I've spoke about Straw before (indeed on this very issue) and the man has a knack for appearing to say/do something whilst actually saying/doing nothing at all.
I think the big question is can there be a politics of 'rights' that represents a permanent, collective intervention of the oppressed into the political scence. And would such a politics of rights not represent a transcendence of rights as we know them?
Tuesday, March 17, 2009
Rights and indeterminacy, supplementary thoughts
One thing lurking in the post below (although I think I mostly avoided this actually) is the underestimation of indeterminacy. This – I think – is another area where Harvey’s argument is problematic, and misses out on some of the ‘formal’ issues with rights-talk. Basically, Harvey notes that not very many of our present rights challenge the liberal consensus, but that a right to the city could be a radical one.
Now, there was a time when I agreed with this position. I thought that by their nature liberal (political and civil) rights would be compatible with the liberal order in a way that some socio-economic rights might not be. I form this opinion upon reading an old but interesting article in New Left Review called ‘A Statutory Right to Work’. This article argued that the right to work should be incorporated into law, but in my way of thinking such a right would – in order to be effective – necessarily have to go beyond the rights framework and challenge the foundational assumptions of the capitalist economy.
But thinking about it, there’s no reason why liberal rights can’t just as easily do this. So take – for instance – the right to life (obviously I’m not saying life is a value only cherished by liberals, but that it is one of a set of quintessentially liberal ‘bare’ rights). Typically this right is seen as saying that the state cannot arbitrarily, directly take someone’s life. But it could easily pushed. Firstly, it could be used to problematise the concept of ‘action’. So sure, the state can’t take actions that deprive people of their lives, but here the action might be inadequate provision of medicines/foods/hospitals etc. By moving to a more complex model of action, which embraces different notions of responsibility the whole neo-liberal order could be thrown into question, since the only way for the state to stop taking people’s lives is to give people substantial control over the state and to rethink production altogether. This is not to mention that there could be a more explicit shift to a positive right, or the ‘quality of life’ arguments that could be made (and I’m pretty sure somewhere there have been UK cases about whether the UK can deport illegal immigrants with HIV to places where HIV treatment is inadequate). But by and large this doesn’t happen.
Similarly, even something like the right to ‘property’ could be pushed. By insisting on a robust concept of property – and perhaps expanding it more general (as in the ECHR) to include the right to a home life, much of the process of accumulation by dispossession could be resisted. I think this is especially important when we think of indigenous populations and the ‘commons’ more generally. Presumably, there could be some vision of property which views the ‘commons’ as in some sense the property of the community, and as such protected against enclosure. Again such interpretations have not been forthcoming.
This also makes me think of Susan Marks’ pioneering work on democracy in The Riddle of All Constitutions. Here, she argues that the right to democracy should be taken seriously, but that to do this we have to critique it from the inside, transforming it into a better right, which might fundamentally remould society.
But this of course raises the question – if any rights can utilised in such a transformative way why haven’t they? And this is quite important. Because the point is that no right is inherently transformative, and even the most solidly, boringly bourgeois liberal rights could be read in such a way as to become positively revolutionary (hence Bob Fine’s observation that communism will be the ‘limitless extension of right’). But whilst this might be a good thing for progressives, it also shows us that even a seemingly revolutionary right might be appropriated.
Of course, one might take the route Marks’ takes here. She basically argues that this type of indeterminacy is a good thing, because it lets us take advantage of the law and mount immanent critiques, to the effect that bourgeois society is not living up to its own standard. I can agree with Marks part of the way here, that the content of the law is pretty contestable. But I disagree with the idea that indeterminacy makes anything possible. My feeling is that Pashukanis’ insights as to the legal form – and its connections to capitalism – show us exactly why it is that even radical rights ultimately seem to slip in seamlessly with liberalism. This means ideology critique, whilst it may advance the interests of the oppressed, only ever remains within the liberal-capitalist framework (even if it is a social-democratic liberal capitalism), unless it is used to transcend not just a particular instance of legal ideology but law itself. This, I think, is what Harvey and Bowring can be read as being ‘up to’, in their most radical sense, rights can be used as a way to abolish the existing order itself. But I do think this means going beyond the law and admitting that this use of rights is extremely dangerous (because it carries with it all the possible problems of the legal form).
Now, there was a time when I agreed with this position. I thought that by their nature liberal (political and civil) rights would be compatible with the liberal order in a way that some socio-economic rights might not be. I form this opinion upon reading an old but interesting article in New Left Review called ‘A Statutory Right to Work’. This article argued that the right to work should be incorporated into law, but in my way of thinking such a right would – in order to be effective – necessarily have to go beyond the rights framework and challenge the foundational assumptions of the capitalist economy.
But thinking about it, there’s no reason why liberal rights can’t just as easily do this. So take – for instance – the right to life (obviously I’m not saying life is a value only cherished by liberals, but that it is one of a set of quintessentially liberal ‘bare’ rights). Typically this right is seen as saying that the state cannot arbitrarily, directly take someone’s life. But it could easily pushed. Firstly, it could be used to problematise the concept of ‘action’. So sure, the state can’t take actions that deprive people of their lives, but here the action might be inadequate provision of medicines/foods/hospitals etc. By moving to a more complex model of action, which embraces different notions of responsibility the whole neo-liberal order could be thrown into question, since the only way for the state to stop taking people’s lives is to give people substantial control over the state and to rethink production altogether. This is not to mention that there could be a more explicit shift to a positive right, or the ‘quality of life’ arguments that could be made (and I’m pretty sure somewhere there have been UK cases about whether the UK can deport illegal immigrants with HIV to places where HIV treatment is inadequate). But by and large this doesn’t happen.
Similarly, even something like the right to ‘property’ could be pushed. By insisting on a robust concept of property – and perhaps expanding it more general (as in the ECHR) to include the right to a home life, much of the process of accumulation by dispossession could be resisted. I think this is especially important when we think of indigenous populations and the ‘commons’ more generally. Presumably, there could be some vision of property which views the ‘commons’ as in some sense the property of the community, and as such protected against enclosure. Again such interpretations have not been forthcoming.
This also makes me think of Susan Marks’ pioneering work on democracy in The Riddle of All Constitutions. Here, she argues that the right to democracy should be taken seriously, but that to do this we have to critique it from the inside, transforming it into a better right, which might fundamentally remould society.
But this of course raises the question – if any rights can utilised in such a transformative way why haven’t they? And this is quite important. Because the point is that no right is inherently transformative, and even the most solidly, boringly bourgeois liberal rights could be read in such a way as to become positively revolutionary (hence Bob Fine’s observation that communism will be the ‘limitless extension of right’). But whilst this might be a good thing for progressives, it also shows us that even a seemingly revolutionary right might be appropriated.
Of course, one might take the route Marks’ takes here. She basically argues that this type of indeterminacy is a good thing, because it lets us take advantage of the law and mount immanent critiques, to the effect that bourgeois society is not living up to its own standard. I can agree with Marks part of the way here, that the content of the law is pretty contestable. But I disagree with the idea that indeterminacy makes anything possible. My feeling is that Pashukanis’ insights as to the legal form – and its connections to capitalism – show us exactly why it is that even radical rights ultimately seem to slip in seamlessly with liberalism. This means ideology critique, whilst it may advance the interests of the oppressed, only ever remains within the liberal-capitalist framework (even if it is a social-democratic liberal capitalism), unless it is used to transcend not just a particular instance of legal ideology but law itself. This, I think, is what Harvey and Bowring can be read as being ‘up to’, in their most radical sense, rights can be used as a way to abolish the existing order itself. But I do think this means going beyond the law and admitting that this use of rights is extremely dangerous (because it carries with it all the possible problems of the legal form).
Labels:
Bowring,
David Harvey,
human rights,
indeterminacy,
law,
rights talk,
Susan Marks
Some sketchy stuff on socio-economic rights etc.
David Harvey has been putting out some really interesting stuff as of late (indeed I think he’s always put out very interesting stuff, so perhaps I mean it has been coming onto my ‘radar’ more recently). Obviously a lot of it doesn’t address law in particularly great depth, but I recently read his ‘The Right to the City’[1], which prompted to me to think about human rights and in particular socio-economic rights. Although the article concerns a lot of issues – capitalism, accumulation, urbanisation etc. I want to focus on the way in which Harvey articulates into the framework of human rights. Harvey’s begins by noting that:
It’s difficult to sum up all the complex argument he makes, but the crux of it is that urbanisation has historically been a way of solving the problem of surplus-capital and unemployment. Furthermore, it has historically been used and continues to be used as a way to pacify and undermine working class radicalism. The processes of urbanisation are always characterised by dispossession, whereby urban dwellers are forced out – through financial or physical coercion – to make way for capitalist development. In advanced capitalism this process has been characterised by a blurring of the urban and the rural, with such struggles assuming central political importance. Thus, one of the major battles of the period will be over the ‘right to the city’, which – concretely – means the battle over who controls the production and utilisation of the surplus which drives urban development:
As against this, it is necessary to assert the democratic right to the city, insisting on broad, popular participation in the control of this surplus. For Harvey this means that such a right would go beyond the stale liberal deployment of human rights since:
In a way, this argument reflects the more general line of argument that radical defenders of human rights deploy with respect to socio-economic rights. The basic argument usually amounts to the idea that by virtue of their character and scope socio-economic rights necessarily go beyond bland liberal rights – this is because they concern issues which simply cannot be dealt with as individual ‘property’. But I think this position in general – and I think it works with Harvey in particular – fails to account for indeterminacy in the law, and the way that even radical seeming rights can be co-opted once articulated through the law.
So firstly, I object to the idea that such rights are necessarily ‘collective’ rights. The law has an armament of procedures and processes designed to transform seemingly collective rights into individual ones. The first point to note is that even if a right is a collective one, it can easily be argued (and frequently is argued) that a given collective right is only instantiated through the distribution of rights to individuals. Thus, it is frequently argued that the collective right to self-determination is composed of individual minority rights as well as individual democratic rights.
In this case one assumes that this would need to be achieved through the proceduralisation of rights. Thus, it can be argued that the ‘right to the city’ entails certain individual rights to housing (e.g. protection against forcible eviction) and certain individual democratic rights (e.g. the right to vote for a mayor, who has some substantial control over the disposition of property). This proceduralisation might well mean that some individuals are better off, however, it is unable to get at the broader structural causes of dispossession etc. and so cannot affect the causes of this problem. As a result of this, the individual right itself might lose efficacy. It is useful here to look at Marius Pieterse’s fabulous ‘three act play’[2] on socio-economic rights (apologies for the massive quote):
The ‘play’ also flags up another way in which the ‘right to the city’ might be divested of its power. Here, although the right may be ‘collective’ it is largely powerless. Here, it is useful to turn to Inga Markovits work on ‘bourgeois’ and ‘socialist’ law.[3] Markovits argues that bourgeois law is primarily characterised ‘[a]s individual entitlements’ which ‘confer autonomy in a limited area’ (p.614). This is counterposed with ‘socialist rights’ which, are not individual trumps but:
Now here, the right is clearly ‘collective’ but it can – although not necessarily – become rather ineffective.
The alternative posed here – between a perhaps effective but ultimately stymied individual right and a collective, but easily deflected collective right is not the only set of possibilities. But I think we have to acknowledge the fact that historically this has been just about the limit of rights discourse.
This being said, there is perhaps scope for certain radical ‘rights’. The right to the city could be one of these insofar as if we take it seriously it can read as implying a continuous collective intervention in social life. But crucially, I think this model goes far beyond what we would typically think of as rights. Clearly Harvey’s vision of such a right is not one which can be actualised in the law’s typical setting for actualisation – the court. This is because the social transformation required to create the right to the city simply could not be subject to legal remedies (what would the remedy be to such a violation – the judge hereby orders the establishment of a London Soviet?). So, in this sense, the elaboration and articulation of this right can only be seen in the light of the struggle of social movements. The right can only be meaningful when it animates and is animated by the struggle of the oppressed. Here there are obvious parallels with Bill Bowring’s work.[4]
But I think the question then becomes well why use human rights discourse at all. Harvey’s argument is clearly that human rights discourse has attained an important position in contemporary society, and as such should be taken advantage of. And here we return to a familiar theme in my blog. The contingency with which Harvey treats the negative effects of human rights and their legality is quite telling. Thus, his account foregrounds the fact that ‘[w]e live … in a world in which the rights of private property and the profit rate trump all other notions of rights’ (p.23). Here, the problem of human rights is seen as one of iniquitous content as opposed to form. This ignores, however, the pressures that the rights form exerts on any – even revolutionary content – pushing it towards those two alternatives I outlined above. The pressures of the rights-form – pushing towards individualism and abstraction – can obviously be combated – but I’m not sure that the benefits of rights rhetoric outweigh the costs (not to mention the broader problems of legitimating the entire structure of Law’s Empire).
Notes
[1] David Harvey, ‘The Right to the City’ (2008) 53 New Left Review 23
[2] Marius Pieterse, ‘Eating Socioeconomic Rights: The Usefulness of Rights Talk in Alleviating Social Hardship Revisited’ (2007) 29 Human Rights Quarterly 796
[3] Inga Markovits, ‘Socialist Rights vs. Bourgeois Rights: An East-West German Comparison’ (1978) 45 The University of Chicago Law Review 612
[4] Bill Bowring, The Degradation of the International Legal Order? (2008) Routledge
We live in an era when ideals of human rights have moved centre stage both politically and ethically. A great deal of energy is expounded in promoting their significance for the construction of a better world. But for the most part the concepts circulating do not fundamentally challenge hegemonic liberal and neoliberal market logics, or the dominant modes of legality and state action. We live, after all, in a world in which the rights of private property and the profit rate trump all other notions of rights.
p.23
It’s difficult to sum up all the complex argument he makes, but the crux of it is that urbanisation has historically been a way of solving the problem of surplus-capital and unemployment. Furthermore, it has historically been used and continues to be used as a way to pacify and undermine working class radicalism. The processes of urbanisation are always characterised by dispossession, whereby urban dwellers are forced out – through financial or physical coercion – to make way for capitalist development. In advanced capitalism this process has been characterised by a blurring of the urban and the rural, with such struggles assuming central political importance. Thus, one of the major battles of the period will be over the ‘right to the city’, which – concretely – means the battle over who controls the production and utilisation of the surplus which drives urban development:
The right to the city, as it is now constituted, is too narrowly confined, restricted in most cases to a small political and economic elite who are in a position to shape cities more and more after their own desires.
p.38
As against this, it is necessary to assert the democratic right to the city, insisting on broad, popular participation in the control of this surplus. For Harvey this means that such a right would go beyond the stale liberal deployment of human rights since:
The question of what kind of city we want cannot be divorced from that of what kind of social ties, relationship to nature, lifestyles, technologies and aesthetic values we desire. The right to the city is far more than the individual liberty to access urban resources: it is a right to change ourselves by changing the city. It is, moreover, a common rather than an individual right since this transformation inevitably depends upon the exercise of a collective power to reshape the processes of urbanization. The freedom to make and remake our cities and ourselves is, I want to argue, one of the most precious yet most neglected of our human rights.
p.23
In a way, this argument reflects the more general line of argument that radical defenders of human rights deploy with respect to socio-economic rights. The basic argument usually amounts to the idea that by virtue of their character and scope socio-economic rights necessarily go beyond bland liberal rights – this is because they concern issues which simply cannot be dealt with as individual ‘property’. But I think this position in general – and I think it works with Harvey in particular – fails to account for indeterminacy in the law, and the way that even radical seeming rights can be co-opted once articulated through the law.
So firstly, I object to the idea that such rights are necessarily ‘collective’ rights. The law has an armament of procedures and processes designed to transform seemingly collective rights into individual ones. The first point to note is that even if a right is a collective one, it can easily be argued (and frequently is argued) that a given collective right is only instantiated through the distribution of rights to individuals. Thus, it is frequently argued that the collective right to self-determination is composed of individual minority rights as well as individual democratic rights.
In this case one assumes that this would need to be achieved through the proceduralisation of rights. Thus, it can be argued that the ‘right to the city’ entails certain individual rights to housing (e.g. protection against forcible eviction) and certain individual democratic rights (e.g. the right to vote for a mayor, who has some substantial control over the disposition of property). This proceduralisation might well mean that some individuals are better off, however, it is unable to get at the broader structural causes of dispossession etc. and so cannot affect the causes of this problem. As a result of this, the individual right itself might lose efficacy. It is useful here to look at Marius Pieterse’s fabulous ‘three act play’[2] on socio-economic rights (apologies for the massive quote):
ACT 1: On the Streets
Member/Citizen: I am hungry.
State/Society: (Silence)...
Member/Citizen: I want food!
State/Society: (Dismissive) You can’t have any.
Member/Citizen: Why?
State/Society: You have no right to food.
Member/Citizen: (After some reflection) I want the right to food!78
State/Society: That would be impossible. It will threaten the legitimacy of the constitutional order if we grant rights to social goods. Rights may only impose negative obligations upon us. We cannot trust courts to enforce a right to food due to their limited capacity, their lack of technical expertise, the separation of powers, the counter-majoritarian dilemma, the polycentric consequences of enforcing a positive right, blah blah blah…
Member/Citizen: (Louder) I want the right to food!!
State/Society: (After some reflection) All right, if you insist. It is hereby declared that everyone has the right to have access to sufficient food and water and that the State must adopt reasonable measures, within its available resources, to progressively realize this right.
Member/Citizen: Yeah! I win, I win!
State/Society: Of course you do.
ACT 2: In Court
Member/Citizen: I want food, your honor.
State/Society (Defendant): That would be impossible, your honor. We simply do not have the resources to feed her. There are many others who compete for the same social good and we cannot favor them above her. If you order us to feed her you are infringing the separation of powers by dictating to us what our priorities should be. We have the democratic mandate to determine the pace of socioeconomic upliftment, and currently our priorities lie elsewhere.
Member/Citizen: (Triumphantly) But I have the right to food!
State/Society (Court): Member/Citizen is right. It is hereby declared that the State has acted unreasonably by not taking adequately flexible and inclusive measures to ensure that everyone has access to sufficient food.
Member/Citizen: Yeah! I win, I win.
Everyone: Of course you do.
ACT 3: Back on the Streets
Member/Citizen: I am hungry.
State/Society: (Silence) . . .
Member/Citizen: I want food!
State/Society: We have already given you what you wanted. You have won, remember? Now please go away. There is nothing more that we can do.
Member/Citizen: But I am hungry!
State/Society: Shut up.
(Member/Citizen mutely attempts to swallow the judgment in her favor.)
p.816/7
The ‘play’ also flags up another way in which the ‘right to the city’ might be divested of its power. Here, although the right may be ‘collective’ it is largely powerless. Here, it is useful to turn to Inga Markovits work on ‘bourgeois’ and ‘socialist’ law.[3] Markovits argues that bourgeois law is primarily characterised ‘[a]s individual entitlements’ which ‘confer autonomy in a limited area’ (p.614). This is counterposed with ‘socialist rights’ which, are not individual trumps but:
[P]olicy declarations. Instead of protecting individual autonomy, they set public standards for desirable goals and behavior. Socialist rights are thus not weapons (which would imply potential hostility between the individual and society) but rather like railroad tickets: they entitle the holder only to travel in the indicated direction. The enforceability of a right is always dependent upon its underlying policy justification.
p.614
Now here, the right is clearly ‘collective’ but it can – although not necessarily – become rather ineffective.
The alternative posed here – between a perhaps effective but ultimately stymied individual right and a collective, but easily deflected collective right is not the only set of possibilities. But I think we have to acknowledge the fact that historically this has been just about the limit of rights discourse.
This being said, there is perhaps scope for certain radical ‘rights’. The right to the city could be one of these insofar as if we take it seriously it can read as implying a continuous collective intervention in social life. But crucially, I think this model goes far beyond what we would typically think of as rights. Clearly Harvey’s vision of such a right is not one which can be actualised in the law’s typical setting for actualisation – the court. This is because the social transformation required to create the right to the city simply could not be subject to legal remedies (what would the remedy be to such a violation – the judge hereby orders the establishment of a London Soviet?). So, in this sense, the elaboration and articulation of this right can only be seen in the light of the struggle of social movements. The right can only be meaningful when it animates and is animated by the struggle of the oppressed. Here there are obvious parallels with Bill Bowring’s work.[4]
But I think the question then becomes well why use human rights discourse at all. Harvey’s argument is clearly that human rights discourse has attained an important position in contemporary society, and as such should be taken advantage of. And here we return to a familiar theme in my blog. The contingency with which Harvey treats the negative effects of human rights and their legality is quite telling. Thus, his account foregrounds the fact that ‘[w]e live … in a world in which the rights of private property and the profit rate trump all other notions of rights’ (p.23). Here, the problem of human rights is seen as one of iniquitous content as opposed to form. This ignores, however, the pressures that the rights form exerts on any – even revolutionary content – pushing it towards those two alternatives I outlined above. The pressures of the rights-form – pushing towards individualism and abstraction – can obviously be combated – but I’m not sure that the benefits of rights rhetoric outweigh the costs (not to mention the broader problems of legitimating the entire structure of Law’s Empire).
Notes
[1] David Harvey, ‘The Right to the City’ (2008) 53 New Left Review 23
[2] Marius Pieterse, ‘Eating Socioeconomic Rights: The Usefulness of Rights Talk in Alleviating Social Hardship Revisited’ (2007) 29 Human Rights Quarterly 796
[3] Inga Markovits, ‘Socialist Rights vs. Bourgeois Rights: An East-West German Comparison’ (1978) 45 The University of Chicago Law Review 612
[4] Bill Bowring, The Degradation of the International Legal Order? (2008) Routledge
Tuesday, March 10, 2009
Tigar and Mage on the Reichstag Fire
Just read a great little article in Monthly Review by Michael Tigar (who is great, but hasn’t written all that much since Law and the Rise of Capitalism and [as can be seen from the comments] has written a lot more than I realised!) and John Mage, on law and Nazi Germany. They note:
While no sensible case can be made that gives any primary causal responsibility to the legal establishment, yet it is very clear that it (or if you prefer “the Law”) presented not the slightest obstacle. Nonetheless the German legal establishment was not irrelevant, it had a secondary but not unimportant role in the debacle. For the Nazis to lead the German nation into a war of aggression and into genocide required their hegemony, the tacit acceptance of the legitimacy of their acts—and of the dutiful observance to their demands—as the lawful rulers of the German state, even by many of those German citizens who disagreed with their policies. Resistance to the Nazis, however, required the quickest possible global recognition of their crimes and the threat they represented to all decent people in the entire world. For one moment in the early days of Nazi rule in Germany a public trial presented a focus in which the German courts provided the Nazis an opportunity to further their hegemony, and the potential to the global resistance of an opportunity to expose the Nazi crimes—the Reichstag Fire trial.The article examines how the events surrounding the Reichstag Fire were framed by three separate judicial bodies – the pre-trial German hearings; the actual trial and an international commission put together by activists to evaluate the trial. Tigar and Mage constantly emphasise that:
The Nazi leaders and the Bulgarian defendants agreed on one point: This was a political trial. Any effective defense had to acknowledge this fact and confront the reality of Nazi power and influence. Dimitrov’s tactics, from the first witness until the last words of argument at the end, were based on knowing this truth.The masterful performance of Dimitrov is very instructive:
After Goering’s statement, Dimitrov cross-examined. He peppered Goering with questions. He put questions designed to show that Goering’s accusations of Communist complicity were made after a cursory and flawed investigation. Goering’s anger mounted. He said he was “only concerned with the Communist Party of Germany and with the foreign Communist crooks who come here to set the Reichstag on fire.” The audience cheered. Dimitrov replied, “Yes, of course, bravo, bravo, bravo! They have the right to fight against the Communist Party, but the Communist Party of Germany has the right to go underground and to fight against your government; and how we fight back is a matter of our respective forces and not a matter of law.” Judge Buenger interjected: “Dimitrov, I will not have you making Communist propaganda here.” To which Dimitrov replied that Goering was making National Socialist propaganda. The exchange continued:But the trial takes on particular political significance after the fall of the Nazis. Whilst all the ‘facts’ would seem to suggest that the Nazis themselves were heavily implicated in the fire and legal system (which refused to consider this possibility) was closely involved with Nazism to admit such would be politically inconvenient. This was because – as the RAF always insisted – the West German state was staffed by a bunch of Nazis and the legal system was a particularly bad offender:
Goering: Look here, I will tell you what the German people know. They know you are behaving in a disgraceful fashion....I did not come here to be accused by you.
Dimitrov: You are a witness.
Goering: In my eyes you are nothing but a scoundrel, a crook who belongs on the gallows.
Dimitrov: Very well, I am most satisfied.
At this point, Judge Buenger cut Dimitrov off, again accusing him of making propaganda, while not rebuking Goering at all. Dimitrov tried to put more questions, but the judge ordered him to sit down. Dimitrov had one last shot: “You are greatly afraid of my questions, are you not, Herr Minister?” Goering’s anger rose. He replied, “You will be afraid when I catch you. You wait until I get you out of the power of this Court, you crook!” The judge, ever dutiful, said, “Dimitrov is expelled for three days. Out with him!”
The moment is without parallel, the witness credibly threatening to murder the accused. And the effect of Dimitrov’s cross-examination of Goering, in the court and around the world, was electrifying. The next day the Swiss conservative paper Neue Zürcher Zeitung described Goering’s “mad foolhardy rage” and concluded that “the whole trial has been rendered worthless at one blow.”
The exposure of the omnipresence of those who had been Nazis in the West German state apparatus required a response. The facts of personal biography could not be denied; at most it was possible to obscure them. A major effort was made to exaggerate the minimal conservative opposition to the Nazis, and especially the belated July 1944 conspiracy among a handful of officers that led to an unsuccessful attempt on Hitler’s life. But even with the utmost exaggeration, very few could be claimed to have had any connection, however remote, with these isolated affairs.
The great bulk of German opposition to the Nazis had been from leftists, and it was in the government of the communist East German state—the German Democratic Republic—that it was easy to find those who had fought the fascists arms in hand, and those who truly had been opponents of the Nazis. A more promising alternative was to exculpate the Nazis—who after all had been staunch anticommunists—and in particular the Nazi legal system. A further, and more material, concern was the presence of substantial claims from Jewish victims of the Nazis, demanding restitution of property they had lost (of course always in accordance with legal process of some sort) in the first years after Hitler came to power.In pointing out the Nazi usage of the legal system the article does two useful things. Firstly, it shows us the political stakes of the law and the way in which politics is actualised through law. Secondly, as to the particular character of these stakes, let us note that the Nazis did not simply ‘abolish’ the law; they cannot simply be seen as in some sense being lawless. While there are legitimate questions about the nature of law at some points in Nazi Germany (and whether this indeed was law) it is clear that law and legal processes were – at least at the beginning utilised by the Nazis. More to the point, the living embodiment of law and legal values were seemingly no more resistant to Nazism than anyone else:
A solution was to assert that the German legal system had continued to function—of course unfortunately deprived of the services of its Jewish judges—with unimpaired validity, at least (as regards the Jewish claimants) until Chancellor Adenauer’s chief of staff Globke’s Nuremberg Laws came into effect, several years after the Nazis came to power. A revision of the history of the Reichstag Fire trial would well serve as the basis for this attempt to rehabilitate the Nazi legal system; after all most of the defendants were acquitted, and the court had exculpated the Nazis from having set fire to the Reichstag.
Today, facing a new regime of preventive detention and emergency “Patriot Act” abolition of fundamental rights, it is important not to think that “the Law” as such offers protection. We must offer such support as we can to those lawyers and jurists whose politics and decency have made them take a stand against our own emerging police state regimes.The article also brings into relief the ways in which the law is a way of contesting the reality of particular events. Indeed, should the legal struggle be successful then the political ‘truth’ of one party is given material force. As Bill Bowring notes (The Degradation of the International Legal Order, 2008, Routledge-Cavendish) of the Chechen struggle against the Russian state:
[W]hat is most important for them and their communities is that the truth has, albeit several years later, at last been told, authoritatively and at the highest level, as to the tragedies which befell them and their families, and the responsibility of the state. This is not simply a question of competing narratives. Instead, on my arguments in this book, such applications are the means by which the rights declared in the darkest hour of French Revolution are re-invested with revolutionary content. It is not that the Chechens’ struggle is legitimised by virtue of the rhetoric or the [204] meagre individual remedies on offer in Strasbourg. On the contrary, the daring use made by the Chechen applicants is the means by which the dead rhetoric of government pronouncements or of worthy NGOs is transformed – transmuted – into words and ideas which have material force. It is possible to say that as a result of winning these cases, the relation of forces in Russia as a whole has been realigned, towards the survivors.’
p.205
Legislative attack
China Miéville has again pointed me towards an interesting article that I think is well worth flagging up. The whole article is worth reading in full, but I thought I’d quote some interesting stuff from it:
The Gaza stuff is very telling , and in general the way that international law interpellates all of a subject people as enemies really could be explored further. It would be very useful to map out the practical result of legal language in this area - e.g. when Hamas attacks using its 'indiscriminate' weaponry any non-military personnel killed merit condemnation; when Israel attacks with its 'precision' weaponry, into an area where they are unsure of the exact difference between civilian and Hamas personnel people are interpellated as collateral damage.
Ultimately though, Weizman’s conclusion is a familiar one:
Military experts in law describe attempts to limit the death of bystanders as a pragmatic compromise that seeks to establish the supposedly "correct" relation between a necessary attack on militant targets and the number of civilians killed. The question is what is necessary, what ratio is correct, who is to decide that and who is to judge that. Although the claim that having laws of war is a good thing can still be accepted, it is necessary to be alert to the structural paradox they pose: for when they prohibit some things, they authorise others, and it is the border between the allowed and the forbidden that is the most intense legal battlefield.What is think is quite interesting is the notion that the law of war ‘authorises’ some things. I feel like there could be something very interested in this way, particularly when we look at how the idea of the ‘civilian’ is constructed through international legal regimes. Equally, the way in which international law ascribes ‘value’ to civilian life – by counterposing it to some other objective – is interesting. This is worrisome precisely because of the indeterminacy of the law; if the construction of the ‘civilian’ (and his ‘worth’) is always a legal act, it will always be one which is capable of challenge and as such subject to change. In this way, things we might think of as ordinarily civilian can be rendered the legitimate object of intervention. Although Weizman doesn’t have the legal issues exactly right, I think the argument as regards ‘warnings’ is quite productive:
International law can be thought of not as a static body of rules but rather as an endless series of conflicts over this border. The question is not which interpretation is right, but who has the power to force their interpretation into becoming authoritative. In this sense, international law does not merely legitimate violence but actually relies on it.
The ability to communicate a warning during a battle is technologically complicated. Battle-spaces are messy, violent and confusing environments. Communicating a "warning" can save a life; but it can also in principle have the advantage of rendering "legitimate" targets whose destruction would have been otherwise in contravention of the law. There can thus be a direct relationship between the proliferation of warning and the proliferation of destruction.The way that law interpellates individuals on the battlefield could clearly be a very interesting area for further examination. Indeed, I think the general tenor of this fits quite nicely with Pashukanis' attention to subject-formation. The impact of legal categories on media and political language would also be interesting to look at here, particularly the relationship between interpellation and responsibility (e.g. civilians in Gaza are interpellated as potentially legitimate targets by virtue of the particular organisation of Hamas and concomitantly with this - using some of the arguments in the Geneva Convention - responsibility for these deaths is shifted onto Hamas, who are using civilians as 'human shields' etc.).
The Gaza stuff is very telling , and in general the way that international law interpellates all of a subject people as enemies really could be explored further. It would be very useful to map out the practical result of legal language in this area - e.g. when Hamas attacks using its 'indiscriminate' weaponry any non-military personnel killed merit condemnation; when Israel attacks with its 'precision' weaponry, into an area where they are unsure of the exact difference between civilian and Hamas personnel people are interpellated as collateral damage.
Ultimately though, Weizman’s conclusion is a familiar one:
The logic of this realisation may be the need for those concerned with the interests and rights of people affected by war to employ a double, even paradoxical strategy: one that uses international humanitarian law, while highlighting the dangers implied in it and challenging its truth claims and thus also the basis of its authority. In any event, international law should not be the only language of protest and resistance to Israeli violence. The attack on Gaza should be opposed not because it is "illegal", but because it serves the logic of Israeli control of Palestinians.This I think is right. But we shouldn’t necessarily sacrifice international law’s use as a weapon. Whilst I agree we shouldn’t use IL as our only – or frankly main – language of protest (although not just for reasons of indeterminacy, just because something is contestable doesn’t mean it’s unusable, this is also to do with the particular character of legal argument and its structural affinity for imperial assertions) we obviously can’t abandon international law. So even as we admit international law’s complicity in imperial processes we need to find a way – in certain for a – of forwarding an interpretation that favours the interests of ‘our’ people.
Friday, March 06, 2009
Critical legal theory and cognitive dissonance
Sorry I haven’t updated in a while, but I really feel like I’ve been struck by the curse of bloggers’ block – I literally just couldn’t think of anything interesting to say. I’ve also been trying to read through Arendt’s the Human Condition, which although good, is one of those books that contains an important(ish) observation on every page, and so has to be read fairly closely.
But anyway, I was perusing my RSS feeds when I stumbled upon this. To my horror, as soon as I clicked on the link (and before I even read it) I was going through in my head all of the – I think – legally acceptable arguments Israel could use to justify its assault on Gaza. I then thought about it and realised I’d been doing this a hell of a lot recently. The reason this comes about is obviously for two reasons (both of which come from being a ‘critical legal theorist' – can I count myself as one of those yet?) – firstly, I subscribe to (and defend) the indeterminacy thesis and secondly, I argue that – to some degree – imperial interests are structurally embedded in international law.
Contra this position, there are those who argue that when certain imperialist actions are ‘illegal’ and/or that any legal argument deployed in defence of these actions is just a ‘legal smokescreen’ etc. In order to defend my position against such people I am forced to go through the legal justifications for what I consider barbarous actions, and since my focus has recently been on us ‘taking law seriously’ as an important and ever-present factor in imperial action whenever I see one of these actions I left justifying it in my own head.
But why am I horrified? Surely if I think that legality is – at least in the last instance – rooted in relationships of exploitation and domination and frequently expresses such relations directly in its content I shouldn’t mind that I’m accepting legal justifications for imperial action?
On the one hand, perhaps my reaction shows something of the pervasive power of the legal form in bourgeois society. Thus, even though I rationally ‘know’ that invoking legal arguments to ‘justify’ an act is not necessary endorsing said act. Even though I ‘know’ that the progressive content of a law is always contingent, whereas the form of law is necessarily related to a system of social relations of which I disapprove (obviously too weak a word), I still ‘feel’ the power of the words ‘legal’ and ‘illegal’. In the General Theory Pashukanis says some very suggest (and then remain suggestive, because they are very under-theorised) stuff about the relationship between law, morality, commodity production and (I would infer) personality more generally:
On this basis he concludes that ‘the concept of the moral or equal personality is an ideological formation’ (p.102) generated by relationships of commodity production. This can be quite nicely connection with Althusserian notions of interpellation, whereby the function of ideology is to interpellate individuals as subjects; thus law interpellates subjects as rights-holders and concomitantly as citizens, as equal personalities. This close link between equal personality, commodity exchange and the law manifest itself as a particular attitude towards the law. Whilst we may not know the particular contents of the law, the link between subjectivity and the legal form manifests itself as a particular degree of respect towards the general categories of legal and illegal (which are of course particular contents), as Kinsey (1978) (who I wish everyone would read) puts it:
We are always and already subjects constituted – at least in part – by the legal form. As such, perhaps my uneasiness stems from the fact that – notwithstanding my intellectual/theoretical analysis of the legal form – I am still a subject caught up in and constituted by ideology.
Of course, there’s another possibility, linked to the above. Perhaps I have exaggerated the pervasiveness of legality (I don’t think I have). As a subject I haven’t just been formed by general social processes, I’m also a product of an Anglo-American legal education. Again, there are some very interesting things that can be said about the ideological process bound up in legal education. Again what is important here is not necessarily the ‘learning’ of a particular number of norms (the content of the law). What is important instead is the manner in which the law is imparted, the ‘character’ of studies. Some useful observations here can be found on Simmonds (1985) take on Pashukanis’ take on the relationship between legal theory and the legal form:
Not sure I needed to use the whole quote, but I quite like the idea that legal theory is produced by the legal form. I’d want to extent this, the idea of law as a systematic, seamless enterprise is produced in legal education (and it is rather hard to disrupt), even as legal practice seems to contradict this assumption. More than this, one thing we always got told about our legal education was that it was not just concerned with us learning rules, but that we were being taught to ‘think like lawyers’ – this terrifying abstraction perhaps does something to explain my instinctive attraction to ‘legality’ (as Simmonds points out this concern with abstraction helps us see the link between law and liberalism and I think law school produces liberal of a certain-type).
Finally, and this is the explanation I prefer (since it makes me ‘above’ ideology), perhaps my problem is that even if I am relatively unaffected by this legal-fetishism, I am aware that other people aren’t. So, whilst I may be perfectly comfortable with my equation of the legal form and capitalism and on the contingency of progressive nature of legal argument, I know that in characterising something as ‘legal’ or at least justified by convincing legal arguments (which for me are the same thing) this will carry sufficient legitimating power with most people that I am – in some sense – contributing to the legitimation of actions I oppose. Moreover, I am potentially cutting myself off from a fruitful method of opposing such action.
So, what to do with this? At this point I think it’s quite useful to Susan Marks’ (2007) review of Between Equal Rights. In 2003 Marks participated in a collective letter to the Guardian which criticised the Iraq war as ‘illegal’, in Between Equal Rights China Miéville criticised this letter, noting that it seemed to repudiate the idea of indeterminacy and made it difficult to criticise actions which fell firmly within international law. Indeed, as Marks herself notes, it made it particularly difficult to ‘shift gears’ and turn back to the critique of international law. Marks prefers to think of this as:
So, one way of avoiding the cognitive dissonance I have evinced is to say that indeterminacy is not a property of legal argument, but an argumentative strategy. I just don’t thinks this works though. I guess what I think is that indeterminacy … well … is a property of legal argument. Something is either indeterminate, or it isn’t, there isn’t really a point between. Even if indeterminacy was just a strategy, unless there was some kind of certain criteria that could demarcate when it was legitimate to use this strategy, then international law would still be indeterminate (because the question of when law is indeterminate is itself indeterminate). Indeed, I just think that an anti-formalist formalism (which is all I can really think what this might be), has to be an argument made consciously in bad faith. Now, I can see what in some situations it might be ok to do this, but I think it has to be discussed explicitly.
As some of you will know my solution as to how we grapple with the law is ‘principled opportunism’. Basically, I think that the form of law is rooted in an exploitative social relationship (generalised commodity exchange) and domination and shapes contents that are articulated through it – making it difficult to focus on structural and systemic causes and as such curtailing the transformative potential of legal argument. Furthermore, legalism generally tends to break up collective activity. However, I think it’s fairly clear that progressive interests can be expressed through the law.
So, they key to a progressive legal strategy is to work out how to take advantage of the progressive potential of law’s content, without falling foul of its form. Principled opportunism means that when we invoke legality we don’t do it because of its legality (i.e. its form) but because it advances interests we support. Indeed we support such initiatives in spite of their legality. How does this look in practice, though? Well, the obvious point to note is that there is a conscious instrumentalism at work here – so take this blacklisting business, I would definitely oppose such developments but not for the sake of an abstract ‘right’ to privacy or to holding a political problem. Hence I don’t have a problem with the publication of the BNP membership records and the consequences thereof (and also why I have no problem with excluding BNP members from unions etc.).
Another point is that legality should never be invoked as an independent variable. So I don’t think we should mobilise people with the slogan ‘these acts are illegal’ unless we are very careful about specifying the limits of talk about illegality. But what we can do is mobilise around e.g. a court case centred on said illegality, for instance when people are arguing that a war is illegal as a defence to damaging property. All this has to be done with a conscious disregard for consistence and coherence and full and frank admission as to the indeterminacy of the law.
So, hopefully in this way we help to lessen the legitimating aspects of the law (which ultimately limits relationships of domination and exploitation) whilst taking advantage of legal opportunities that come our way. So I might say – ‘Israel can argue its case’ – but principled opportunism nonetheless permits me to support taking Israel in front of the ICC (ha!) and hoping for the best.
Of course, in practice this support is not going to be as strong as it possibly could be, but I think that’s the price we have to pay to avoid falling into the trap of fully embracing legality.
[Hmmmm…it’s true that the indeterminacy thesis (or at least versions thereof) says groups pursue their interests through the law, and this need not be a ‘conscious’ process. That’s definitely true, but what I think Pashukanis and Marxist approaches more generally point to is that indeterminacy can’t just produce any outcome. Whilst those committed to capitalism can pursue their interests blindly – because the legal form will ultimately uphold their systemic interests – the same thing can’t be said for anti-capitalists. Here, an awareness of the limits of the legal form has to shape the particular strategic approach needed]
Bibliography
Kinsey, R. ‘Marxism and the Law: Preliminary Analyses,’ (1978) 5 British Journal of Law and Society 202
Marks, S. ‘International Judicial Activism and the Commodity Form Theory of International Law,’ (2007) 18 European Journal of International Law 199
Simmonds, N. ‘Pashukanis and Liberal Jurisprudence.’ (1985) 12 Journal of Law and Society 135
But anyway, I was perusing my RSS feeds when I stumbled upon this. To my horror, as soon as I clicked on the link (and before I even read it) I was going through in my head all of the – I think – legally acceptable arguments Israel could use to justify its assault on Gaza. I then thought about it and realised I’d been doing this a hell of a lot recently. The reason this comes about is obviously for two reasons (both of which come from being a ‘critical legal theorist' – can I count myself as one of those yet?) – firstly, I subscribe to (and defend) the indeterminacy thesis and secondly, I argue that – to some degree – imperial interests are structurally embedded in international law.
Contra this position, there are those who argue that when certain imperialist actions are ‘illegal’ and/or that any legal argument deployed in defence of these actions is just a ‘legal smokescreen’ etc. In order to defend my position against such people I am forced to go through the legal justifications for what I consider barbarous actions, and since my focus has recently been on us ‘taking law seriously’ as an important and ever-present factor in imperial action whenever I see one of these actions I left justifying it in my own head.
But why am I horrified? Surely if I think that legality is – at least in the last instance – rooted in relationships of exploitation and domination and frequently expresses such relations directly in its content I shouldn’t mind that I’m accepting legal justifications for imperial action?
On the one hand, perhaps my reaction shows something of the pervasive power of the legal form in bourgeois society. Thus, even though I rationally ‘know’ that invoking legal arguments to ‘justify’ an act is not necessary endorsing said act. Even though I ‘know’ that the progressive content of a law is always contingent, whereas the form of law is necessarily related to a system of social relations of which I disapprove (obviously too weak a word), I still ‘feel’ the power of the words ‘legal’ and ‘illegal’. In the General Theory Pashukanis says some very suggest (and then remain suggestive, because they are very under-theorised) stuff about the relationship between law, morality, commodity production and (I would infer) personality more generally:
People must relate to each other as independent and equal personalities in order for the products of human labour to be related to each other as values … In fact, man as a moral subject, i.e. as an equal personality, is nothing more than a prerequisite of exchange according to the law of value. Man as the subject of rights is such a prerequisite, i.e. as a property owner. Finally, both these definitions are closely connected with a third, man as an egoistic economic subject. All three definitions are not reducible to each other, and are even contradictory as it were. They reflect the totality of conditions necessary for the realization of the value relationship, i.e. a relationship in which the bonds between people in the labour process appear as the material nature of the products being exchanged. If one abstracts these definitions from the real social relationships which they reflect, and attempts to develop them as independent categories, i.e. by pure reason, then as a result one obtains a tangle of contradictions and propositions which are mutually exclusive. But in the real relationship of exchange these contradictions are dialectically united in a totality.
p.101
On this basis he concludes that ‘the concept of the moral or equal personality is an ideological formation’ (p.102) generated by relationships of commodity production. This can be quite nicely connection with Althusserian notions of interpellation, whereby the function of ideology is to interpellate individuals as subjects; thus law interpellates subjects as rights-holders and concomitantly as citizens, as equal personalities. This close link between equal personality, commodity exchange and the law manifest itself as a particular attitude towards the law. Whilst we may not know the particular contents of the law, the link between subjectivity and the legal form manifests itself as a particular degree of respect towards the general categories of legal and illegal (which are of course particular contents), as Kinsey (1978) (who I wish everyone would read) puts it:
As such it is necessary not to conflate morality and legality. As we have seen the individual, in practice, need have no knowledge of the specific legal norms which regulate his social activity. Indeed the “ordinary” man cannot know the law in all its detail for then he would be no ordinary man at all but a “lawyer”. On the other hand however the law must know the ordinary man and the conditions of his (moral) existence. The law constitutes the ordinary man in the abstract as the “reasonable man”, the “man on the Clapham omnibus”. It is in that sense that the law and juridical/positive morality together specify historically the mode in which the juridical relation is realised in a particular social formation.
p.219
We are always and already subjects constituted – at least in part – by the legal form. As such, perhaps my uneasiness stems from the fact that – notwithstanding my intellectual/theoretical analysis of the legal form – I am still a subject caught up in and constituted by ideology.
Of course, there’s another possibility, linked to the above. Perhaps I have exaggerated the pervasiveness of legality (I don’t think I have). As a subject I haven’t just been formed by general social processes, I’m also a product of an Anglo-American legal education. Again, there are some very interesting things that can be said about the ideological process bound up in legal education. Again what is important here is not necessarily the ‘learning’ of a particular number of norms (the content of the law). What is important instead is the manner in which the law is imparted, the ‘character’ of studies. Some useful observations here can be found on Simmonds (1985) take on Pashukanis’ take on the relationship between legal theory and the legal form:
[I]t is possible to argue that juridical theories are actually produced by the law itself. It might be possible to have a society where rules were established and obeyed for reasons of convenience, changed in an ad hoc manner when seemed desirable, and regarded generally as tools of exclusively utilitarian significance. Such a society would not possess a legal system of the type which interests Pashukanis, or of the type of which we are familiar. The legal order of a liberal, or bourgeois, society is thought of as a more or less consistent and coherent body of rights. Even if the law is thought of in terms of rules, the rules are assumed to be coherent. Contradictions between valid rules are regarded as impossible in principle, and a major task of juristic activity is the dissolution of any apparent contradictions … [I]t can be argued that the notion of the subject as an immobile bearer of rights is itself linked to the presupposition of consistency and coherence within the law … Bourgeois law contains within itself … a continuing pressure for increased coherence … This pressure for increased coherence means that bourgeois law produces juristic theory as fire produces smoke. The search for coherence and consistency at some point reaches a level of abstraction where the enterprise comes to be regarded as “legal theory” rather than “legal doctrine”.
p.137
Not sure I needed to use the whole quote, but I quite like the idea that legal theory is produced by the legal form. I’d want to extent this, the idea of law as a systematic, seamless enterprise is produced in legal education (and it is rather hard to disrupt), even as legal practice seems to contradict this assumption. More than this, one thing we always got told about our legal education was that it was not just concerned with us learning rules, but that we were being taught to ‘think like lawyers’ – this terrifying abstraction perhaps does something to explain my instinctive attraction to ‘legality’ (as Simmonds points out this concern with abstraction helps us see the link between law and liberalism and I think law school produces liberal of a certain-type).
Finally, and this is the explanation I prefer (since it makes me ‘above’ ideology), perhaps my problem is that even if I am relatively unaffected by this legal-fetishism, I am aware that other people aren’t. So, whilst I may be perfectly comfortable with my equation of the legal form and capitalism and on the contingency of progressive nature of legal argument, I know that in characterising something as ‘legal’ or at least justified by convincing legal arguments (which for me are the same thing) this will carry sufficient legitimating power with most people that I am – in some sense – contributing to the legitimation of actions I oppose. Moreover, I am potentially cutting myself off from a fruitful method of opposing such action.
So, what to do with this? At this point I think it’s quite useful to Susan Marks’ (2007) review of Between Equal Rights. In 2003 Marks participated in a collective letter to the Guardian which criticised the Iraq war as ‘illegal’, in Between Equal Rights China Miéville criticised this letter, noting that it seemed to repudiate the idea of indeterminacy and made it difficult to criticise actions which fell firmly within international law. Indeed, as Marks herself notes, it made it particularly difficult to ‘shift gears’ and turn back to the critique of international law. Marks prefers to think of this as:
[A] communicative challenge. How can we find a language that can hold together both formal legal arguments and arguments that criticize legal formalism? How can we express things in a way that makes it clear that determinacy and indeterminacy are not properties of international law, but are themselves arguments which we use in different contexts for different ends?
p.209
So, one way of avoiding the cognitive dissonance I have evinced is to say that indeterminacy is not a property of legal argument, but an argumentative strategy. I just don’t thinks this works though. I guess what I think is that indeterminacy … well … is a property of legal argument. Something is either indeterminate, or it isn’t, there isn’t really a point between. Even if indeterminacy was just a strategy, unless there was some kind of certain criteria that could demarcate when it was legitimate to use this strategy, then international law would still be indeterminate (because the question of when law is indeterminate is itself indeterminate). Indeed, I just think that an anti-formalist formalism (which is all I can really think what this might be), has to be an argument made consciously in bad faith. Now, I can see what in some situations it might be ok to do this, but I think it has to be discussed explicitly.
As some of you will know my solution as to how we grapple with the law is ‘principled opportunism’. Basically, I think that the form of law is rooted in an exploitative social relationship (generalised commodity exchange) and domination and shapes contents that are articulated through it – making it difficult to focus on structural and systemic causes and as such curtailing the transformative potential of legal argument. Furthermore, legalism generally tends to break up collective activity. However, I think it’s fairly clear that progressive interests can be expressed through the law.
So, they key to a progressive legal strategy is to work out how to take advantage of the progressive potential of law’s content, without falling foul of its form. Principled opportunism means that when we invoke legality we don’t do it because of its legality (i.e. its form) but because it advances interests we support. Indeed we support such initiatives in spite of their legality. How does this look in practice, though? Well, the obvious point to note is that there is a conscious instrumentalism at work here – so take this blacklisting business, I would definitely oppose such developments but not for the sake of an abstract ‘right’ to privacy or to holding a political problem. Hence I don’t have a problem with the publication of the BNP membership records and the consequences thereof (and also why I have no problem with excluding BNP members from unions etc.).
Another point is that legality should never be invoked as an independent variable. So I don’t think we should mobilise people with the slogan ‘these acts are illegal’ unless we are very careful about specifying the limits of talk about illegality. But what we can do is mobilise around e.g. a court case centred on said illegality, for instance when people are arguing that a war is illegal as a defence to damaging property. All this has to be done with a conscious disregard for consistence and coherence and full and frank admission as to the indeterminacy of the law.
So, hopefully in this way we help to lessen the legitimating aspects of the law (which ultimately limits relationships of domination and exploitation) whilst taking advantage of legal opportunities that come our way. So I might say – ‘Israel can argue its case’ – but principled opportunism nonetheless permits me to support taking Israel in front of the ICC (ha!) and hoping for the best.
Of course, in practice this support is not going to be as strong as it possibly could be, but I think that’s the price we have to pay to avoid falling into the trap of fully embracing legality.
[Hmmmm…it’s true that the indeterminacy thesis (or at least versions thereof) says groups pursue their interests through the law, and this need not be a ‘conscious’ process. That’s definitely true, but what I think Pashukanis and Marxist approaches more generally point to is that indeterminacy can’t just produce any outcome. Whilst those committed to capitalism can pursue their interests blindly – because the legal form will ultimately uphold their systemic interests – the same thing can’t be said for anti-capitalists. Here, an awareness of the limits of the legal form has to shape the particular strategic approach needed]
Bibliography
Kinsey, R. ‘Marxism and the Law: Preliminary Analyses,’ (1978) 5 British Journal of Law and Society 202
Marks, S. ‘International Judicial Activism and the Commodity Form Theory of International Law,’ (2007) 18 European Journal of International Law 199
Simmonds, N. ‘Pashukanis and Liberal Jurisprudence.’ (1985) 12 Journal of Law and Society 135
Subscribe to:
Posts (Atom)
