Liberal interventionism at home...

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).

Speaking of socio-economic rights...

...and their uselessness, this caught my eye:

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?

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).

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:

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

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:

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.”

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:

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.

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.

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:

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

Law and Loneliness

A few weeks ago I finished reading Hannah Arendt’s The Origins of Totalitarianism (1962, Meridian Books). As many of you will know the book is really great and mounts an original and persuasive argument with regards totalitarianism, even convincing me that the term might have some utility (although I am fairly steadfast on the idea that equating Nazi Germany and the ‘Stalinist’ Soviet Union is not that useful). However, as with recent critical work (which of course is influenced by this account) I think that Arendt gives law rather too much of an easy ride. Often in the book she treats the law (in Debord’s words) as being ‘asleep’ to processes of domination before ultimately being abolished. As I have argued earlier this is something of a liberal response (although Arendt was obviously not a liberal and she is ambivalent on the law), which absolves law of complicity in oppression (even if one some level it must condemn law for being so inefficient).

I think this is particularly prevalent in her discussion of the role that the ‘masses’ and loneliness play in the growth and consolidation of totalitarianism. For Arendt ‘loneliness’ and the ‘masses’ are two parts of the same process. Although the concept of loneliness in only introduced in an amended chapter to Origins (Ideology and Terror) I would argue it remains implicit within her description of the masses (indeed it is explicitly mentioned in this earlier discussion) and is very useful in differentiating between the special role of the masses in totalitarianism and ‘ordinary’ tyrannies.

Arendt first distinguishes between isolation and loneliness. Isolation occurs in the political sphere, essentially it occurs when people are unable to make public, political contacts with each other. Owing to this they become unable to act politically and so impotent. Arendt argues that this is standard fare for all tyrannical regimes (p.474). However, this political isolation cannot break all contacts between men, the corresponding condition to isolation in human life as a whole is loneliness.

Arendt again makes a distinction, between loneliness and solitude. Solitude is simply being alone or ‘by myself’, for Arendt solitude can still involve a dialogue between ‘me’ and ‘myself’. By contrast, loneliness ‘shows itself most sharply in company with others’ (p.476). Loneliness is the ‘experience of not belonging to the world at all’ (p.475). The experience of loneliness requires the company of others because our identity is constantly confirmed by the company of equals, thus, the experience of loneliness, of not belonging with anyone else ultimately means an end to the self as well.

This is necessary because totalitarian movements embody a total ideology. Only lonely, gullible people who lack common sense and need an anchor in their superfluous world. Arendt gives these rather mystical sounding phrases a concrete basis with her notion of the masses. Essentially, Arendt argues that totalitarian movements (in contrast to all political movements that preceded them) are ‘mass organizations of atomized, isolated individuals’ (p.323). For Arendt, then, totalitarianism depends upon the existence of the masses; for Arendt the masses are a somewhat contradictory phenomenon, produced by bourgeois society. Essentially, they are the embodiment of loneliness so as such the masses are a ‘mass’ of atomised, individuals who have also lost all sense of self (p.311). She ascribes the rise of the masses to the growth of bourgeois society:

The truth is that the masses grew out of the fragments of a highly atomized society whose competitive structure and concomitant loneliness of the individual had been held in check only through membership in a class. The chief characteristic of the mass man is not brutality and backwardness, but his isolation and lack of normal social relationships.
p.317

Reading Arendt’s account of the masses I was struck by two things, firstly, its similarity of Pashukanis’ account of the law, and secondly, the complete absence of the law from Arendt’s particular discussion. Thus, as Pashukanis notes (in the General Theory of Law and Marxism ‘law … is a method of relating atomized social elements’ (p.90), furthermore, from my favourite quote:

Law is simultaneously a form of external authoritative regulation and a form of subjective private autonomy. The basic and essential characteristic of the former is unconditional obligation and external coercion, while freedom is ensured and recognized within definite boundaries. Law appears both as the basis of social organization and as the means for individuals "to be disassociated, yet integrated in society".
p.70

Here Pashukanis demonstrates perfectly the way that law mirrors the contours of the mass man. While it is clearly a way in which individuals relate to each other, it also posits these individuals as atomised, isolated, monads. In other words, one of the prime pre-conditions of totalitarianism, the creation of a mass of atomised individuals is perfectly homologous with the law, this – at least – should be an area of investigation.

However, insofar as Arendt mentions law, it is to talk solely about its inefficacy or its abolition. So, on the one hand, she argues that ‘[t]he first essential step on the road to total domination is to kill the juridical person in man’ (p.447) by placing certain people and certain regimes outside of the protection of the law. This is really just a deepening of Arendt’s classic engagement with the nation-state and the rights of man. Basically, Arendt argues that the phenomenon of refugees and displaced persons undermined somewhat the claim to alienable rights – independent of any particular national laws. This is because the point at which people lost their nationalities – and became refugees – they lost all their rights. Even in the democratic countries they would very likely be placed into camps and had less rights than even criminals (who are at least subject to the procedural rigours of the law). Thus:

The paradox involved in the loss of human rights is that such loss coincides with the instant when a person becomes a human being in general—without a profession, without a citizenship, without an opinion, without a deed by which to identify and specify himself—and different in general, representing nothing but his own absolutely unique individuality which, deprived of expression within and action upon a common world, loses all significance.
p.302

Arendt opines that this is because major figures were convinced that civil rights (that is to say the national rights of citizens) were the concrete embodiment of human rights, as such the nation became the heart of human rights. More generally, Arendt argues that the abstract, individual, ‘human’ rights only make sense inside of a stable social hierarchy, which includes not only the nation, but also the class and political structure:

Democratic freedoms may be based on the equality of all citizens before the law; yet they acquire their meaning and function organically only where the citizens belong to and are represented by groups or form a social and political hierarchy.
p.312

So the point for Arendt is that with the disintegration of these hierarchies (following the war and owing to the general atomisation occasioned by the development of capitalism) produce the masses, which creates a politics ripe for the abolition of the juridical person. What this account seems to miss is the intimate inter-relation between law and atomisation. Rather than being ‘ineffective’ in the face of atomisation law seems to be an embodiment of this atomisation and – perhaps – an attempt to mediate it, without ultimately overcoming it.

But more than this, Arendt fails to consider the way in which, owing to its close connection with capitalism, law produces atomisation – and so contributes to the formation of the masses, as well as the undermining of stable hierarchies. Social atomisation is – of course – occasioned by the development of capitalism. But capitalism is not just an ‘economic’ system, as Pashukanis has shown, the commodity form always throws up the legal form alongside it – the atomisation of capitalism is the atomisation of law. This becomes even more relevant when we consider the ways in which capitalism brings people ever closer together, this concentration of human beings (in the factory etc.) combined with the atomisation of the law creates the preconditions for the development of the masses.

Another aspect of this atomisation is the social disintegration described by Arendt. In his introduction to the third edition to the General Theory (1977, Ink Links) Pashukanis describes the process by which law becomes the main form of social regulation as:

[T]he disintegration of organic patriarchal relations and their replacement by legal relations, that is to say relations between formally equal subjects. The dissolution of the patriarchal family, in which the pater familias was the owner of his wife’s and his children’s labour power and its transformation into a contractual family in which the spouses conclude between themselves a contract of their estate, and the children … receive wages from the father, is one of the most typical examples of this development.
p.41

The whole thrust of the law is to break up formally recognised hierarchies and replace them with collections of formally equal individuals. This is not just true of the family but more generally. So for instance, Arendt puts a lot of stress on the nation-state, but the thrust of rights-talk has been to juridicalise the nation. Firstly, in the sense that in many cases the ‘idea’ of the nation is reduced to its ‘Constitution’, its ‘Declaration of Rights’ etc. Secondly, in the sense that nationality itself is juridicalised, with the nation no longer seen as an organic social hierarchy but instead a collection of formally equal citizens. Thus, if the law does require social hierarchies to give it substance (and I would really want to qualify this, it’s clear that the law requires something and here I think Rasulov’s notion of the Poulantazian state is very useful) it nonetheless tends to dissolve these very hierarchies.

Thus, even if we are to characterise totalitarianism as without law (and this is always hugely problematic even, I think, inside the camps), it is not the case that the law is simply ineffective when confronted with totalitarians. Instead law was essential in creating the conditions in which totalitarianism could flourish. Law with its emphasis on creating abstract, formally equal individuals and then allowing them to interact as such, is the perfect embodiment of the atomisation and loneliness that gives rise to the masses. This incidentally perhaps tells us something about our own political practice. Often we on the left insist on the right to – say – a minimum wage, benefits etc. in contradistinction to gaining them from charity. In a way this has to be correct because we don’t want people to essentially be dependent on the will of others in the form of charity. However, what charity does do (although even this is increasingly undermined by juridification) is maintain a human relationship as opposed to an abstract, atomised, distant one. The challenge then is to find a politics beyond both abstract rights-talk (which might lead the way to totalitarianism) and romantic organicism, that is to say to find a politics in of the active subject that collectively intervenes in the political sphere.

Law and Debord

When I was younger (about 17 or 18) I really got into – what might broadly be termed – 1960s Marxist humanism (or something like that). Of particular interest to me were Marx’s Paris Manuscripts (and there are still some passages I can remember almost by heart) and the Situationist International, particularly Guy Debord’s Society of the Spectacle. However, once I started to really get into legal theory (and other areas of the Marxist oeuvre), the SI no longer exerted that much direct influence on me. Yet as I was walking home from the chip shop recently it struck me that some of the stuff in the Society of the Spectacle might help to illuminate some legal theory stuff. This is an avenue I could see myself pursuing further in a few years, but here are some preliminary thoughts I have on the matter.

I

In the introduction to Society of the Spectacle Debord argues that ‘[i]n societies where modern conditions of production prevail, all of life presents itself as an immense accumulation of spectacles. Everything that was directly lived has moved away into a representation’ (1). This is obviously a modification of Marx, who argued that the wealth of capitalist society was an ‘immense accumulation of commodities’ (Marx 1999: 13). What is relevant to us is that Pashukanis argues ‘[a]s the wealth of capitalist society assumes the form of an enormous accumulation of commodities, society presents itself as an endless chain of legal relationships’ (1980: 62). Can we interrogate the relationship between commodity exchange, the spectacle and the law?

II

It’s clear that this question is not one that preoccupied Debord. In his Comments on the Society of the Spectacle Debord argued ‘[i]n the integrated spectacular, the laws are asleep; because they were not made for the new production techniques, and because they are outflanked in distribution by new types of agreement’ (xxvi). Debord (in what seems to me a particularly French moves), imagines law to be those formal, general ‘rules’ issued by the state which (although they might well be aimed at combating the spectacle) are simply ineffective. He fails to consider the fact that law itself might be intimately related to the spectacular society he describes.

III

Debord argues that the domination of the spectacle – of representation over lived reality – is the ultimate victory of commodity fetishism. What he fails to note is that as soon as commodity fetishism appeared, legal fetishism appeared also, man was abstracted from his concrete existence and made into an abstract, formally equal legal subject, who possessed certain rights and duties. Thus, in a very real sense, the legal subject is the already existing spectacular representation of actually existing human beings, as Pashukanis notes:

[R]eal conditions are necessary for man to be transformed from a zoological being into an abstract and impersonal subject of law, into a juridic person. These real conditions consist in the condensation of social relations and the growing power of social, i.e. class organization, which achieves its maximum intensity in the "well organized" bourgeois state. Here, the ability to be a subject of rights is finally torn from the living concrete personality, ceases to be a function of its active conscious will, and becomes a purely social quality. Legal capacity is abstracted from the ability to have rights. The legal subject receives his alter ego in the form of a representative while he himself assumes the significance of a mathematical point, a centre in which a certain sum of rights is concentrated.
(1980: 78-79)

Rather than law’s being ‘asleep’, the legal person is already a ‘spectacular’ one. The development of the legal form pre-figures, and remains active in the development of the spectacle more generally.

IV

From this general point, there are some specific ideas that might be drawn. Firstly, the law takes spectacular situations, apprehends them, and even produces them. International law is particularly pertinent here. If we take the example of 9/11, Retort wrote a very astute article on its spectacular significance, they argued that:

Spectacularly, the American state suffered a defeat on September 11. And spectacularly, for this state, does not mean superficially or epiphenomenally. The state was wounded in September in its heart of hearts, and we see it still, three years later, flailing blindly in the face of an image it cannot exorcize, and trying desperately to convert the defeat back into terms it can respond to.
(2004: 12)

To my mind, what is very interesting is the way that international law responded this crisis. Firstly, international law was vital in apprehending 9/11 and ‘converting’ it into an event to which the US could respond to. In this way, law was able to apprehend the spectacular event. But in so doing it had already added its own logic to it, thus partaking in this spectacular event and overdetermining it. More interesting is the way in which law; in apprehending the spectacle of 9/11 then produced ever more spectacular events. The first – and most obvious – is the way that the ‘conversion’ allowed immediate, spectacular action in Afghanistan. But this was not enough. What is very telling is that the spectacle of 9/11 when ‘fed into’ the law was able to produce the defining ‘spectacle of our time’ – the War on Terror. I don’t want to pursue this too far but it is firstly clear that the War on Terror is an intensely legal reality. It is conducted through a series of legal bodies and has used copious amounts of legal argument (although some would argue it is bad legal argument). But secondly, is it not absolutely clear that the War on Terror is a spectacular one? The very name itself is not a war on concrete, actually existing terrorists (although it is that too) but a war on a concept, on an ‘image’, that of terrorism. The actions that took place through it, and the media coverage accompanying them are also pure spectacle. I am sure that we could obverse this logic in other places.

V

More particularly, there is a sense in which legal proceedings themselves are spectacular. If we think about the events of the trial – the pomp, the circumstance, the rituals etc., it is all pure spectacle. In order for ‘real life’ to be ‘represented’ in the legal proceedings it has to be ‘converted’ through a series of special rules and procedures, into something that fits its logic. Law is always and already ‘representation’.

But this process has deepened immensely in the past few years. We don’t have to look too hard to see the way that law enforcement and trial proceedings have captured the public eye. This is obvious from the numerous law-themed TV shows (and there are many) but also from the media attention on the law (and not just criminal law either). Debord argued that:

The celebrity, the spectacular representation of a living human being, embodies this banality by embodying the image of a possible role. Being a star means specializing in the seemingly lived; the star is the object of identification with the shallow seeming life that has to compensate for the fragmented productive specializations which are actually lived.
(60)

I have already commented on the general affinity the legal form and the celebrity might have (in that both are spectacular representations of living beings) but there is a sense in which now the two have merged. The moment of ‘actualisation’ for the legal subject – the moment of dispute, trial etc. – is also the moment in which the legal subject can be transformed into a celebrity; there is an even greater concentration of representation. One’s day in court might also be one’s fifteen minutes of fame.

VI

To return to a theme much beloved of me, legal argument – by virtue of its spectacular character – is subject to a spectacular logic. First and foremost is the sense in which, when the law ‘apprehends’ a given piece of reality (the subject of a case) it ‘converts’ it into a spectacular logic. Thus, the law only ever inquires into the surface of the situation that confronts it. It is unable to consider the deeper logics that may have produced the dispute, or problem or whatever. Instead it treats the situation as a ‘unique’ event, with no structural logic governing it. Everything comes down to the actions of the abstract, formally equal representations that form the centre of the law. This has been much discussed by a lot of people under the rubric of exceptionalism, crisis focus etc., but no-one has tried to look at the structural reasons for this (which is quite ironic).

But – with all the contradictory logic that the spectacle brings – the law, whilst making each situation qualitatively unique, also reduces every situation to a quantitative similarity (much the same way as every commodity is reduced to ‘value’. Debord is very good on the ways that capitalism has standardised and quantified ‘time’ (although of course this is all taken from Lukács):

The time of production, commodity-time, is an infinite accumulation of equivalent intervals. It is the abstraction of irreversible time, all of whose segments must prove on the chronometer their merely quantitative equality. This time is in reality exactly what it is in its exchangeable character. In this social domination by commodity-time, “time is everything, man is nothing; he is at most the carcass of time” (Poverty of Philosophy). This is time devalued, the complete inversion of time as “the field of human development.”
(147)

This logic is exactly the same as that of the law. Whilst insisting on the uniqueness of any given event (or at least its remoteness from any factors which may have produced the event) the law remains obsessed with analogy and standardisation. Once the law has ascribed ‘responsibility’ for the breach on one of the parties, it then proceeds to reduced this breach to a standard ‘substance’ (money, time etc.) and deprive the ‘responsible’ party of this substance. Pashukanis has previously remarked how the logic of the criminal trial mirrors the logic of the exchange of equivalents (1980: 111).

But it is also at work more generally in the law. Thus, the law of self-defence (both nationally and internationally) insists that any action taken in self-defence must be ‘proportionate’, as does jus in bello. In this we see the double movement of the spectacle, whilst it denies that there might be a common logic operating in reality – and so treats each of its spectacles as a self-contained incident – it nonetheless seeks to reduce reality to a common equivalent.

VII

I’d like conclude with what these little observations might mean for legal strategy. Recently, China Miéville has pointed me in the direction of Jacques Verges (which he found through Christodoulidis. Verges argues that we should use court action strategically, as a form of immanent critique – rupturing bourgeois ideology. Verges example consisted in using the legal forum to challenge the legitimacy of the court itself, but we can think of examples that go further than this – like the Yippies.

But my problem with this is that any strategy of rupture seems to be inescapably spectacular – the aim being to counterpose one’s own immediate image to the spectacle. Now, there’s always a possibility that legal strategy will get co-opted by capitalist society. The point of the rupture is meant to be that – precisely because it insists there can be no justice – it cannot be co-opted. But is there not the ever-present chance that precisely because of this spectacular logic the rupture is easily co-optable. The normal danger of legal strategy is that if we win, our opponents can say ‘we can’t be so bad, you got this’. The danger of the ruptural strategy is that it just becomes another ‘media event’, a stunt that has no political significance. Indeed, the danger is – that like 9/11 – any ruptural strategy is simply ‘fed into’ the law, which produces more spectacles. Verges is instructive here, I mean the man has a film about him. Bourgeois society could respond to his ruptural strategy not by saying ‘we’re so free here that he can do this’ but simply by treating him as an eccentric celebrity.

This harks back to Rasulov’s phrase about ‘intellectual anarcho-terrorism’. The only way to really avoid co-optation is to build a serious, practical movement which can’t simply be written off as spectacular. Whether or not such a group can use spectacular methods is – I think – very similar to whether or not we should appeal specifically to legality. I think the answer to both is – it depends, but it’s always going to be risky.

Conclusion
So, yeah, I’m aware that my thoughts on this are very sketchy, and I’ll probably forget all about this soon enough. But I do actually think that something might quite usefully come from reading Pashukanis (and law) through Debordian eyes, and vice-versa. I also think that such a position has a lot to say in illuminating our current conjuncture, and hopefully I could squeeze an article out of this.

Hope y’all had a merry Christmas and have most excellent plans for new year (I do not).

Bibliography
Guy Debord (1967), Society of the Spectacle
Guy Debord (1988), Comments on the Society of the Spectacle
Karl Marx (1999), Capital: Volume 1, Oxford World Classics
E.B. Pashukanis (1980), Selected Works
Retort Collective (2004), Afflicted Powers

Right-wing Pashukanisites

Scott Newton had a lot of interesting things to say at Glasgow (and coined some very useful terms and concepts). One of the dangers he warned of is the ‘right wing Pashukanisites’, these are the people that understand the close relationship between law and capitalism, and the contingency of the state to law. But they use this understanding to argue for a withdrawal of the state from social life and widespread deregulation and privatisation. It’s true that there is a curious affinity between Pashukanis and (what might be broadly termed) classical liberalism, Nigel Simmonds has a very interesting take on this in ‘Between Positivism and Idealism’ (1991 50 Cambridge Law Journal 308):

The relationship between law and social relations is, then one of symbiosis. Yet the basic patterning of law runs from bottom to top. Contrary to positivism, which is inclined to suggest that the texts and the sources of law come to shape a formless social world, an adequate view should see the institutions of private law as reflecting (but systematising) the informal texture of social life, while formal criteria of validity and formal provisions for legislative and adjudicative power stabilise the stabilisers. Law in large part reproduces and confirms the structure of society.

This suggests, of course, that there is much in common between the broadly Hayekian view of law advocated here, and the Marxist view. G.A. Cohen, for example, has analogised the base/superstructure relation to a situation where four struts are driven vertically into the ground but protrude a distance above it; the struts sway and wobble in the wind, until a roof is placed on them. The roof is supported by the struts, but it in turn stabilises the struts ... In fact once we allow that one principal way in which law stabilises social relations is by authoritatively fixing their meaning, we move towards a qualified appreciation of the “imbricationist” view within Marxism, a view that denies the possibility of describing social relations apart from law and offers this as a reason for rejecting the base/superstructure distinction.

The extent of the resemblance between the somewhat conservative Hayekian view of law that I have sketched, and the Marxist view, is further evinced by the work of Pashukanis. Like Hayek, Pashukanis portrays law as emerging spontaneously from practices of dispute resolution, and sees the positivist emphasis on norms and authority [322] as a delusion arising from failure to grasp the priority of relations over formal norms. Again like Hayek, Pashukanis sees private law as the central core of the legal system, in relation to which public law and constitutional structures of authority are secondary and parasitic.
p.323

Hayek is important here, and I am reminded quite strongly of something Splintered was talking about recently. Crucially, however, as Simmonds notes, Marxists differ from liberals in their evaluation of law/capitalism etc. I’m not sure I think that ‘evaluation’ captures entirely the differences in approach here. The term evaluation seems to evoke the image of the Marxist and the Hayekian looking at the same phenomenon (capitalism), with the same understanding of it but the Marxist saying ‘capitalism is bad’ (because it deprives human beings of the capacity to fully realise themselves) and the Hayekian saying ‘capitalism is great (because it gives human beings the capacity to fully realise themselves).

But I think the differences are more important than this. To return to Scott Newton, he argued that one of the really important things Pashukanis (and Marxism more generally) is able to do is ‘see the public in the private’ and the ‘private in the public’. So, Marxists don’t just evaluate capitalism. We firstly see that the ‘private’ character of capitalism – and the wealth of individuals – is maintained by a complex relationship of violence, ideology and economic dependence, which may or may not be the state (in a bourgeois sense; although Akbar Rasulov has been saying some fascinating stuff about how in the Poulantzasian sense of state – a social relation which ‘holds’ social formations together – law always needs it; to my mind this is an avenue for exploration and avoids some of the physical violence centricity that I think China Miéville sometimes slips into). Secondly, we understand that the supposedly ‘neutral’ instruments of state, law etc. actually embed particular interests within them. This is in a double sense; firstly, law (as Duncan Kennedy has persistently notes) has a distributive impact upon supposedly private situations. As such particular interests use the law strategically, so as to secure private advantage. But we shouldn’t get carried away with this. And this brings me onto the second point. One of the most important things we can learn from Pashukanis is the limits to legal struggle. So, although a wide range of interests might be represented through the law, ultimately the legal form itself is produced by and reproduces capitalism. In this sense, it ultimately upholds the interests of one ‘private party’ the class which benefits from capitalism. As is often the case, behind the universal claims as to the rule of law lie the particular claims of one class – the bourgeoisie.

So, the important point is not just that we are just dealing with ‘moral evaluations’. Marxists see the legal form as ultimately upholding the interests of a particular class (the private in the public), whereas libertarians deny the importance of class as a salient category. Furthermore, Marxists stress that the class relationships of capitalist society are relationships of exploitation and domination (with struggle to alleviate the worst of these conditions). Typically, Pashukanis is accused of neglecting this, insofar as class is not hugely focused on in the General Theory and this, it might be argued that his similarity to (say) Hayek originates here. This point isn’t entirely without merit, but I would argue that the similarity comes from the fact that Pashukanis takes the law seriously on its own terms and, as Chris Arthur notes (Law and Marxism: a General Theory, 1978, Ink Links):

The monopolisation of the means of production by the capitalist class is an extra-legal fact (quite unlike the political-economic domination of the feudal lord). The bourgeois legal order contents itself with safeguarding the right of a property owner to do as he wishes with his own property – whether it be the right of a worker to sell his about power because that is all he owns, or that the capitalist to purchase it and retain the product.
(p.30)

Indeed, Marx himself does a similar thing in Capital (when he argues the difference between exchange and production). The point of the Marxist analysis is that it does not remain trapped in the law’s hypnotic image; it seeks to understand how the formal equality of the law interacts with the complex class reality of international capitalism. Thus, as Pashukanis himself notes that ‘‘the republic of the market’ masks the ‘despotism of the factory’’ (1978: 39). However, Pashukanis’ work goes beyond even this – and here is where we truly understand the private in the public (and the public in the private); because the particular despotism of the factor is not just masked by the republic of the market, it is intimately linked to this republic and is only possible through it, again Chris Arthur puts it well:

No amount of reformist factory legislation can overcome the basic presupposition of the law: that a property freely alienated belongs to the purchaser, and hence that the living labour of the worker becomes, through exchange, available for exploitation through capital.
(1978: 31)

Again, I would like to appeal to Foucault on discipline here. One of the really interesting points about Discipline and Punish is the way in which discipline is form of regulation which only comes about through dual processes of concentration and individuation. In other words discipline maps perfectly onto the process outlined by Pashukanis – whereby capitalism (and law) make everyone an individual whilst also brining making everyone and everything more closely inter-linked than they have ever been before.

To put it crudely then, the Hayekian knows rather a lot about circulation, but very little about production. He fails to see that despotic relations of production are in fact an outcome of the equal relations of circulation. The Marxist takes law seriously – and so understands the constitutive role of formal equality/the public in the private – but also understands law’s place in capitalist society and the attendant relations of class domination.

All of this is of course very similar to a previous post I have made.

Some very scattered observations on Schmitt and equality

I just finished reading Schmitt’s Crisis of Parliamentary Democracy (1988 MIT Press). It’s a very interesting text (and I use the word text deliberately, because calling this flimsy work a book is a massive overstatement) for a lot of reasons. From a biographical point of view it strikes me as the first text in which Schmitt seems really, really uncertain politically. His disenchantment with liberal is palpable – as is his fascination with ‘mythical politics’ (which subsumes both Bolshevism and Fascism) – but you can tell that he doesn’t really know what to do.

Now, I’ve always been very aware that reading Schmitt is not an unproblematic exercise, especially because the distinction between description and prescription (witness Telos). So one thing I always want to avoid is whitewashing Schmitt’s politics and denying that his political positions had any connection with his theoretical ones. That being said, I don’t really hold any truck with people who think that everything Schmitt said is tainted by association with his politics. Schmitt clearly has some interesting things to say about liberalism and (by extension) contemporary social life. Anyhow, blurbs aside, I was struck when I was reading this from the preface to the second edition:

[W]here a state wants to establish general human equality in the political sphere without concern for national or some other sort of homogeneity, then it cannot escape the consequence that political equality will be devalued to the extent that it approximates absolute human equality. And not only that. The sphere of the political and therefore politics itself would also be devalued in at least the same degree, and would become something insignificant ... Substantive inequalities would in no way disappear from the world and the state; they would shift into another sphere, perhaps separated from the political and concentrated in the economic, leaving this area to take on a new dis-[12]proportionately decisive importance. Under conditions of superficial political equality, another sphere in which substantial inequalities prevail (today, for example, the economic sphere) will dominate politics.
p.13

In a lot of respects this dovetails quite nicely with Marxian concerns. It has long been a criticism of Marxists that formal the move to formal legal equality merely allows other, substantive inequalities to move to the fore. However, I think there are several ways in which Schmitt could extend such a critique but doesn’t (and I suspect this comes down to his politics). Firstly, he doesn’t describe the ways in which this formal equality legitimates and maintains inequality. In his description, there is just a sense in which inequality ‘shifts’, but this misses the fact that formal politico-legal equality is able to mystify inequality. This gets compounded when we think about the labour-capital relationship. There’s a sense in which the employment relationship – in its most fully realised form – is only possible insofar as we have formal equality coupled with substantive inequality. So what we get is a difference in economic power which is only realised through the contract.

This also leads us to a second point. Marx’s account of capitalism doesn’t just suggest that inequality is realised through equality. It also shows how formal legal equality produces inequality through the commodification of labour power and the intensification and concentration of production [c.f. Foucault on discipline here]. This segues quite nicely with Schmitt’s more general concern. Much of the thrust of The Crisis of Parliamentary Democracy (or at least the introduction on the second preface) is the contradiction between liberalism (parliamentarianism) and democracy. Although the argument emerges in lots of different ways throughout the text, it has a specific meaning in the context of equality. Basically, Schmitt argues that the foundation of democracy is homogeneity:

Every actual democracy rests on the principle that not only are equals equal but unequals will not be treated equally. Democracy requires, therefore, first homogeneity and second – if the need arises – the elimination or eradication of heterogeneity.
p.9

Now, I have to say I really don’t agree with this specifically but I do believe there is a sense in which ‘democracy’ brings with it a certain notion of violence, whereby the majority enforces its will on the minority; but I’ll talk a little bit more about this later. Interestingly, Schmitt also echoes something I’ve written about Hobbes and Locke, only about Rousseau:

The idea of a free contract of all with all comes from a completely different theoretical world where opposing interests, differences, and egoisms are assumed. This idea comes from liberalism. The generally will as Rousseau constructs it is in truth heterogeneity.
p.14

Again, I have problems with someone who attempts to make an ‘authoritative’ reading of a contradictory thinker by simply saying what they ‘really’ mean. The contract clearly does a lot of theoretical work in Rousseau. What I think is interesting about this reading of Rousseau, and indeed problematic about Schmitt’s line on liberalism in general, is that what he is trying to do is say is 'here’s one distinct phenomenon ‘democracy’ which has these characteristics’ and here’s another ‘liberalism’ the problem is when you try to combine the two'.

But – both historically and conceptually – I don’t think you can really do this. The example of Rousseau and Locke etc. shows us that, theoretically, liberalism wasn’t simply elaborated on its own and then brought into contact with democracy (or more generally ‘the problem of the masses’) it was always elaborated in the context of a project of mass governance. I think this surfaces quite obviously at the theoretical level too; liberalism has usually had two aims – one of them is try to legitimate state coercion by reference to consent; the other is to use this framework (which has often drawn the masses decisively into politics) to protect certain rights and interests – typically property. As is often observed, this point immediately brings in somewhat of a tension – what has primacy ‘consent’ (which one can take for democracy) or the ‘rights’ which are meant to be protected?

These problems are not just the theoretical problems of liberalism. They are the instead the theoretical mediations of a very practical problem. The fundamental unit of capitalism is the commodity form, which posits every individual as an abstract, formal equal. But the development of capitalism brings people together, in ever greater numbers and causes the unequal development of economic power (in the worker-capitalist relationship). The point here is that the equality/inequality problem isn’t produced by applying ‘equality’ to mass-democracy, instead the two are historically and theoretically linked. There’s a great quote from Discipline and Punish [1991, Penguin] (which I don’t endorse fully) which I think negates the simplistic duality:

The real, corporal disciplines constituted the foundation of the formal juridical liberties. The contract may have been regarded as the ideal foundation of law and political power; panopticism constituted the techniques universally widespread, of coercion. It continued to work in depth on the juridical structures of society, in order to make effective mechanisms of power function in opposition to the formal framework that I had acquired. The ‘Enlightenment’, which discovered the liberties, also invented the disciplines.
p.222

Now, I’m probably going to stop here, as I’m aware I’m rambling, but let me say two things on the matter. Firstly, (as I noted about Agamben) it does feel like such a position allows liberalism (and the law) to shirk responsibility for its bad points – even if it also loses some effectivity. Secondly, the perspective I’m outlining sees fascism as – at least partly – internal to liberalism, a certain manifestation of its internal contradictions. This of course would upset both fascists and liberals. Schmitt’s position, on the contrary, allows liberals to remain ‘pure’ and fascism to pose itself as an alternative to liberalism. But my brief considerations might suggest that the fundamental contradiction that produces this problem – capitalist properly relations (and their attendant ideological form – liberalism) – isn’t abolished by fascism, they are only temporarily attenuated, and this is precisely why Schmitt’s ultimate political choice was the wrong one.

Legality and Illegality

Quoted a bit of this recently, but I feel like it's worthy of more:

The question of legality or illegality reduces itself then for the Communist Party to a mere question of tactics, even to a question to be resolved on the spur of the moment, one for which it is scarcely possible to lay down general rules as decisions have to be taken on the basis of immediate expediencies. In this wholly unprincipled solution lies the only possible practical and principled rejection of the bourgeois legal system. Such tactics are essential for Communists and not just on grounds of expediency. They are needed not just because it is only in this way that their tactics will acquire a genuine flexibility and adaptability to the exigencies of the particular moment; nor because the alternate or even the simultaneous use of legal and illegal methods is necessary if the bourgeoisie is to be fought effectively.

Such tactics are necessary in order to complete the revolutionary self-education of the proletariat. For the proletariat can only be liberated from its dependence upon the life-forms created by capitalism when it has learnt to act without these life-forms inwardly influencing its actions.

Principled opportunism.

I think Marxist legal theorists need to re-read History and Class Consciousness (see Phil for a recent summary).

Thinking about legal strategy

So I’ve been thinking a lot about legal strategy over the past few months, especially as I am working on an article that engages with China Miéville’s take on the question. My conclusion – at this moment – is that there is some definite but limited role for ‘legal struggle’ (here I don’t mean struggle that is within the law, but rather struggle over legality – e.g. we oppose the war in Iraq on the basis that it was illegal). But I also think legal struggle in this sense comes up against the limits of legal argument. Legal argument is – by its nature – individualistic and de-contextualising. This means that legal struggle cannot adequately address the systemic and structural causes of ‘illegal’ behaviour. Furthermore, if law is generated by capitalism, then doesn’t this type of legal struggle serve to legitimate capitalism? So insofar as there is a place for progressive legal practice (and I believe there is one) I think it has to be in concrete, practical struggles (often defending our actions). But this type of practice has to be aware of its limitations; indeed, one would think that what has to be done here is the continual admission that these actions are in no way adequate.

However, to this idea I think we can counterpose what I would call ‘Leninist optimism’, as Pashukanis argued, in relation to self-determination:

Lenin understood what his opponents failed to understand: that the “abstract”, “negative” demand of formal equal rights was, in a given historical conjuncture, simultaneously a revolutionary and revolutionizing slogan.

(Pashukanis, Lenin and the Problems of Law: 161)

Now, this passage – and the work it’s taken from – can be read in different ways. But the straightforward thing to note is the way that an abstract demand (i.e. legality) can be revolutionary. One can easily see this can be the case. In course of their concrete struggle progressive forces assert an abstract legal demand. This demand is able to rally others around it. Should this demand not be met, those who have rallied around it might be made to question the existing order, and even overthrow it. In this way what we can see is a case of legality against legality – with the ultimate aim – perhaps – using a legal argument to abolish the law.

Now, I am unsure about this. China Miéville has argued – persuasively – that there is nothing in my analysis that makes legality a necessary component of this. Why does the demand need to be a legal one? Can legal demands motivate people in a way that others cannot? As it happens, I do think that characterising something as illegal can galvanise people in a way that other appeals cannot (this is mostly anecdotal, a feeling as it were, but let’s just proceed). But if is the case, then why?

And here we reach a real problem.

Law only reaches full bloom, spreads it wings, saturates our social existence with the generalisation of commodity form – viz. the growth of capitalism. So the specific motivating power of legal argument originates from the ubiquity of capitalist social relations. So, in drawing on this motivation for revolutionary strategy, we end up strengthening them. Lukács is quite good on this (eventually I'm going to get round to re-reading History and Class Consciousness and make some posts on it, the book has quite a lot of interesting legal observations (uh oh bracket within a bracket!! - it's interesting how much juridical content is in a lot of Marxist stuff and how many Marxists have a legal background)):

Even in the very midst of the death throes of capitalism broad sections of the proletarian masses still feel that the state, the laws and the economy of the bourgeoisie are the only possible environment for them to exist in. In their eyes many improvements would be desirable (‘organisation of production’), but nevertheless it remains the ‘natural’ basis of society.

In order to overcome this it is necessary to see the law as nothing more than a ‘power factor’ (Lukács is right and wrong on this – we definitely have to move away from the fetishism of law but we shouldn’t neglect its internal, specific character):

Such tactics are necessary in order to complete the revolutionary self-education of the proletariat. For the proletariat can only be liberated from its dependence upon the life-forms created by capitalism when it has learnt to act without these life-forms inwardly influencing its actions.

Thus, in taking advantage of the motivating power of legality would we be maintaining people’s ‘dependence upon the life-forms created by capitalism’? If so, can we expect such a strategy to take us to a post-capitalist (and post-legal) future?

What's breaking into a bank compared with founding a bank?

"What's breaking into a bank compared with founding a bank?"

What might this Brechtian phrase say about the law? On the one hand we might read it as a simple critique of the way that the class element enters into it. So what we say is - here are two types of act that 'hurt' people. But - because of the class interest that gets expressed through the law - only the interests of the capitalists is protected. Whilst I would argue that critique is probably true (although it needs work obviously - how is the class interest expressed through the law? is this a necessary expression? etc.). In a way, my observation is linked to this. What I argue is that this 'class interest' is able to be expressed through the law because of its structure.

This is because the law seems to have real trouble encompassing structural or systemic violence. It is structured such that a legal result can only ever address individual acts and situations (through the medium of the legal judgment) not structures and systems. Indeed this is an issue I have addressed before. What is also interesting is the ideological function of this feature of the law. To some degree Susan Marks talks about this under the rubric of justificatory exceptionalism. Essentially, the law (and legal judgments) tend to take people's general grievances with the system and transform them into particular, resolvable problems. This is only going to be a short post, but an interesting (if rather long) illustration of this can be found in Marcuse’s One Dimensional Man, whilst he is referring to the problem of language, I think the same applies to law (not that I am suggesting some kind of connection between the two):

In investigating the walkers' complaints about walking conditions and wages, the researchers hit upon the fact that most of these complaints were formulated in statements which contained “vague, indefinite terms,” lacked the “objective reference” to “standards which are generally accepted,” and bad characteristics “essentially different horn the properties generally associated with common facts. In other words, the complaints were formulated in such general statements as “the washrooms are unsanitary,” "the job is dangerous,” “rates are too low.”

Guided by the principle of operational thinking, the researchers set out to translate or reformulate these statements in such a manner that their vague generality could be reduced to particular referents, terms designating the particular situation in which the complaint originated and thus picturing “accurately the conditions in the company.” The general form was dissolved into statements identifying the particular operations and conditions horn which the complaint was derived, and the complaint was taken care of by changing these particular operations and conditions.

For example, the statement “the washrooms are unsanitary” was translated into “on such and such occasion I went into this washroom, and the washbowl had some dirt in it.” Inquiries then ascertained that this was “largely due to the carelessness of same employees,” a campaign against throwing papers, spitting on the floor, and similar practices was instituted, and an attendant was assigned to constant duty in the washrooms. “It was in this war that many of the complaints were re-interpreted and used to effect improvements.”

Another example: a worker B makes the general statement that the piece rates on his job are too low. The interview reveals that “his wife is in the hospital and that he is worried about the doctor's bills he has incurred. In this case the latent content of the complaint consists of the fact that B's present earnings, due to his wife's illness, are insufficient to meet his current financial obligations.”

Such translation changes significantly the meaning of the actual proposition. The untranslated statement formulates a general condition in its generality ("wages are too low"). It goes beyond the particular condition in the particular factory and beyond the worker's particular situation. In this generality, and only in this generality, the statement expresses a sweeping indictment which takes the particular case as a manifestation of a universal state of affairs, and insinuates that the latter might not be changed by the improvement of the former.

Thus the untranslated statement established a concrete relation between the particular case and the whole of which it is a case – and this whole includes the conditions outside the respective job, outside the respective plant, outside the respective personal situation. This whole is eliminated in the translation, and it is this operation which makes the cure possible. The worker may not be aware of it, and for him his complaint may indeed have that particular and personal meaning which the translation brings out as its “latent content.” But then the language he uses asserts its objective validity against his consciousness – it expresses conditions that are, although they are not “for him.” The concreteness of the particular case which the translation achieves is the result of a series of abstractions from its real concreteness, which is in the universal character of the case.

It is a shame that Marcuse never considered the role of labour law in this process, but the particular structure of labour tribunals helps illustrate how his observations operate within the law. I am tempted also to link this with Lukacs position on the role of totality. If the revolutionary insight of Marxism lies in the perspective of totality, then it is quite interesting that law continually detolalises. Indeed, I would argue that understanding this is vitally important if we wish to make any consideration of law in revolutionary strategy. For whilst the law may be used to 'defend' people, it does not seem capable of effecting systemic change. In fact it may positively militate against such change.

An idea

Although I'm probably talking to myself, I thought I'd throw this out here. Last night I was reading through Larry Solum's Legal Theory Lexicon and it struck me that there isn't really anything comparable for left/critical legal theory. I think there's an interesting project to be found in giving basic exopsitions of a bunch of different schools/phenomena/disciplines from a critical/left theoretical perspective. Of course, I wouldn't think about doing this sort of thing on my own, but it strikes me that there are people out on the web who could do this sort of thing - Red Wombat is well-versed in legal theory, LWC could obviously do a lot with criminological/crime issues and Phil would be the obvious choice as regards anti-terrorism etc.

Of course this is probably going to go nowhere, but could perhaps be an example of some of the interesting stuff blogs can produce.

(Really) Agamben and Pashukanis

Agamben (emphasis mine):

The law has a regulative character and is a "rule" not because it commands and proscribes, but because it must first of all create the sphere of its own reference in real life and make that reference regular. Since the rule both stabilizes and presupposes the conditions of this reference, the originary structure of the rule is always of this kind: "If (a real case in point…), then (juridical consequence…)," in which a fact is included in the juridical order through its exclusion, and transgression seems to precede and determine the lawful case. That the law initially has the form of a lex talionis …means that the juridical order does not originally present itself simply as sanctioning a transgressive fact but instead constitutes itself through the repetition of the same act without any sanction, that is, as an exceptional case. This is not a punishment of this first act, but rather represents its inclusion in the juridical order, violence as a primordial juridical fact…In this sense, the exception is the originary form of law.

The cipher of this capture of life in law is not sanction (which is not at all an exclusive characteristic of the juridical rule) but guilt (not in the technical sense that this concept has in penal law but in the originary sense that indicates a being-in-debt: in culpa esse), which is to say, precisely the condition of being included through an exclusion, of being in relation to something from which one is excluded or which one cannot fully assume. Guilt refers not to transgression, that is, to the determination of the licit and the illicit, but to the pure force of the law, to the law's simple reference to something.[1]

Pashukanis:

Russkaya Pravda‑that most ancient historical monument of the Kievan period of our history‑consists of 43 articles (the so‑called academic register). Only two articles do not relate to violations of criminal or civil law. The remaining articles either determine a sanction, or else contain the procedural rules applicable when a law has been violated. Accordingly, deviation from a norm always constitutes their premise. The same picture is presented by the so‑called barbarian laws of German tribes. For example, in the Salic Law only 65 of 408 articles do not have a punitive nature. The oldest monument of Roman law‑the laws of the Twelve Tables‑begins with rules defining the procedure for initiating litigation: "Si in ius vocat, ni it, antestamino. Igitur im capito". (If a man is called to court and he does not go, this should be attested, and he should be taken there) …

Non‑observance of a norm, or violation of it, the disruption of normal intercourse and ensuing conflict: this is the starting point of the most important content of ancient legislation. Conversely, what is normal is not fixed in the beginning as such‑it merely exists. The requirement that the scope and content of mutual rights and obligations be fixed and exactly established, appears when calm and peaceful existence is violated. From this perspective Bentham is right when he asserts that a statute creates rights as it creates crimes. Historically, the legal relationship assumes its specific character pre‑eminently in the facts of violations of law. The concept of theft was defined earlier than the concept of private property. The relationships attending a loan were fixed when the borrower did not want to repay it: "if one tries to recover a debt and the debtor refuses etc." (Russkaya Pravda, Academic Register, Art. 14). The original significance of the word pactum was not that of contract, but pax, peace, i.e. an amicable conclusion to hostility, "peaceful" (Vertrag) supposes the end of "unpeaceful" (Unvertraglichkeit).[2]

Which links nicely back to the introduction to this blog I wrote over three years ago(!):

[I]n a real sense law only exists with disorder, the normal conduct is only rendered "normal" by the deviation itself. Historically, then, law can only be seen as arising as a material solution to “disorder”, and to act as a corrective. But the continued existence of a law can surely only mean one thing, disorder still exists. Therefore the corollary of the law is not “order” because once one has “order” there is no need for law, law is dialectically generated by the continued presence of disorder. Therefore the fact that law does not extinguish itself also raises many questions as to its efficacy as a method of social regulation.

What does all this tell us? Firstly, one wonders why the sole reference I can find in anything Agamben writes to Pashukanis is in State of Exception, where he simply notes the opposition between Vyshinsky and Pashukanis on the question of the withering away on the law. If anyone else can find a reference I would be gratified to see it. Secondly, what I quite like about Agamben is that he actually deals with ‘law’ as a named relation. A lot of people seem to deal with Schmitt as primarily a political theorist. Having read the Schmitt I’ve read I always find this a bit hard to swallow, whilst Schmitt is obviously speaking to politics broadly conceived, there are vast swathes (one might say these swathes constitute the majority of his work) in which he is thinking juridically. This is particularly evident (to me) in – say – Political Theology; I read a lot of people who take Schmitt speaking very narrowly of states of exception. Yet, it seems to me that alongside this Schmitt’s decisionism extended into legal decision-making as such. This depiction of indeterminacy (which McCormick is very good on) is powerful precisely because it totally problematises a central plank of liberal-capitalist ideology the ‘rule of law’ (and not men). The mature Schmitt is even better on this, but it seems few people have read On the Three Types of Juristic Thought – perhaps because it is a much more juridical work.

I think it’s quite interesting to compare the way in which Pashukanis and Agamben approach this. Agamben’s approach seems to be primarily philosophical/theoretical, with some nods towards historical analysis. Pashukanis approaches the question both logically and historically, grounding his logical analysis in historical presentation (although one can hardly call his brief historical considerations an in-depth analysis). What I also find interesting about Pashukanis’ work (and this describes his work more generally) is the way in which he depicts the unfolding of theoretical argument through a historical process.

I’m also tempted to say that Agamben’s lack of an explicit theorisation of the legal form hinders him somewhat (although again I have in no way read his entire oeuvre and so am probably wrong). So Pashukanis doesn’t just argue that law needs disorder etc.; he outlines a specific historical process through which deviations eventually constitute the norm, which eventually gains its legal character. Whereas, with Agamben it’s just kind of there. This of course raises a whole host of other problems – chief among them that inclusive exceptions might be said to operate amongst a whole host of regulative social relations (something which Agamben is happy to acknowledge). However, I think I’ll leave my mediations for now, and return to this at a later point, as all I really want to do is quote Pashukanis at people, this would not be wise, but I would again recommend people read him. I think I’ll also write something a wee bit more coherent at a later time.

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[1] Homo Sacer, pp.26-27

[2] General Theory of Law and Marxism, p.110