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

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.

Agamben (but not really)

Of late I have been – rather slowly it has to be said – making my way through Giorgio Agamben’s Homo Sacer[1]. Whilst I’m sure this is hardly interesting news to most people (as likely you won’t care or have already read it), I thought I might as well occasionally blog my thoughts on the book. I found the following argument rather interesting:

One of the most persistent features of Foucault’s work is its decisive abandonment of the traditional approach to the problem of power, which is based on juridico-institutional models (the definition of sovereignty, the theory of the State), in favour of an unprejudiced analysis of the concrete ways in which power penetrates subjects’ very bodies and forms of life ... Foucault seemed to orient this analysis according to two distinct directives for research: on the one hand, the study of political techniques (such as the science of the police) with which the State assumes and integrates the care of natural life of individuals into its very center; and on the other hand, the examination of technologies of the self by which processes of subjectivization bring the individual to bind himself to his own identity and consciousness and, at the same time, to an external power ... Clearly these two lines ... intersect in many points and refer back to a common center ... Yet the point at which these two faces of power converge remains strangely unclear in Foucault’s work ... If Foucault contests the traditional approach to the problem of power, which is exclusively based on juridical models ... or on institutional models ... and if he calls for a “liberation from the theoretical privilege of sovereignty” in order to construct an analytic of power that would not take law as its model and code then where, in the body of power, is the zone of indistinction (or, at least, the point of intersection) at which techniques of totalizing procedures converge? ... [W]hat is the point at which the voluntary servitude of individuals comes into contact with objective power? ... Confronted with phenomena such as the power of the society of the spectacle that is everywhere transforming the political realm today, is it legitimate or even possible to hold subjective technologies and political techniques apart?[2]

As I say, I find this position to be quite interesting, and on some levels it reflects how I have felt when I engaged with Foucault’s work (I should add that this has been a very limited engagement, a situation I hope to remedy sometime). For me, what is particularly interesting is the notion that ‘the traditional approach to the problem of power’ was based ‘exclusively on juridical ... or ... institutional models’ and took ‘law as its mode and code’. Of course, I should firstly note that Agamben may not accurately represent Foucault’s views, I am inclined to think that he gets to the gist of what Foucault (sometimes) says quite well, but am ready to be corrected otherwise.

With this in mind there are a few ways in which this interests me. Firstly, one ought to point out the slippery notion of the idea of the notion of a ‘traditional’ mode of analysis. Designating something as traditional is a rhetoric flourish which tends to mark one out as ‘radical’ and reduces complex theoretical positions to some single ‘idea’. I say this because orthodox/mainstream accounts of power clearly have recognised the importance of informal/non-state power. Sure, there is a tradition (that one might designate ‘libertarian’) whose sole purpose seems to ideologically obfuscate the fact that non-state actors can wield tremendous amounts of power, but I don’t think we can just call these people ‘traditional’ and be done with it.

This is more important when we take into account critical theorists. Whilst obviously not ‘mainstream’ such positions were nonetheless often accused by Foucault of being too fixated on state power (particularly Marxists). This always struck me as incredibly counter-intuitive, seeing as how for traditional Marxists political power was subordinate too or at least produced (dialectically) by economic power. But this isn’t what really interests me, instead we need to examine the vision of ‘law’ that is put forward in this type of analysis. Here law is seen as inextricably linked to the state – as a kind of directive vertically addressed from the state to the citizen – hence its linkage with ‘objective power’. This view – that of law as sovereign command – does have a certain lineage, one can find it in some of the older legal positivists, but by and large it has been rejected by orthodox legal theory. Thus, there is the classical argument by Hart, that this sort of position has real difficulty in explaining whole swathes of civil law – contracts, marriages etc. – whereby the law isn’t a projection of state power so much as a mode by which individuals are able to form relationships. Here the state may craft the outlines of some rules (although this again is by no means certain) and judges will step in, but only in the last instance. The same can be said of human rights. Here what we have rights that individuals have which can be asserted against individuals or against the state. Whilst one might attempt to characterise human rights as the state commanding itself/others to behave in a certain way, this seems to miss the point. Human rights are characterised by their active assertion by the rights-holders or those representing them. Finally, of course, there is the matter of international law (my own personal obsession) here of course there is no body with the monopoly on legitimate violence that characterises the ‘traditional’ vision of the state.

This is the typical argument of a ‘Pashukanite’. Law can’t just be conceived as the ‘norm’ directed from state power, as this fails to encompass many of the relationships we currently consider to be legal. Furthermore, the state addresses its subjects through numerous commands and directives which we might not characterise as law. The next step of course is to argue that ‘law’ cannot be considered from content, function etc., as other things have similar contents, functions etc. – we have to move to seeing law as a social relationship or a social form. Pashukanis sees the legal form as one in which individuals are posited as formally equal, abstract units and regulated as such.

This gives us two immediate considerations to think about. Firstly, as Pashukanis notes, the growth of law can be characterised as ‘the disintegration of organic patriarchal relations and their replacement by legal relations, that is to say relations between formally equal subjects’[3]. If we wanted to put this in good old Foucauldian terms, we might say that for Pashukanis the process of ‘juridicalisation’ goes on concomitantly with – and perhaps even drives – the process of individuation. This, of course, somewhat problematises the law/discipline (etc.) distinction, precisely because Pashukanis sees that individuation (and ultimately the production of selves) is at least partly a legal process. Richard Kinsey, in what I consider to be one the best works in Marxist legal theory, put it this way (emphasis mine):

What is important here however is not so much the invisibility of the legal relation but its possibility. That is, the possibility of the concretisation in legal relations of all social relations of commodity production and exchange, a possibility which is essential and specific to the commodity structure of the capitalist mode of production. It is this potential for the extension of legal relations to include and define all social relations which marks the full and mature development of law in the bourgeois epoch and displays the inherently bourgeois character of law as a lived relations, as a definition of subjectivity.[4]

Linked to this of course is the reach of legal power. Foucault is often said to have contrasted micro-power and macro-power, with law largely confined to the latter category. But I would argue against this. Firstly, in the sense – as above – that the legal form is an important driving force in the constitution of individual subjectivity, but secondly because once you correctly understand law as a form of social regulation then we can see how law is constantly involved in the micro-politics of everyday life. So – and this is the usual law school spiel – there is the obvious contractual stuff – with the obvious example of sale and the crucial example of the alienation of labour-power. But there is also anti-discrimination legislation, health and safety laws, working time regulations etc. There is a plethora of labour law and human rights law that is clearly a part of the texture of micro-politics.

And this bring me nicely onto another point about law. Whilst I have stressed that the law simply cannot be thought of as ‘state power’ it would be rather silly to just remove state power from the equation. Instead law should be understood as a relationship that requires force for its actualisation (although what type of ‘force’ is a point we need to specify) and one through which the bourgeois state typically articulates its demands. This dialectical understanding – law as a relationship of formal equality through which objective violence is articulated in nicely captured by Pashukanis (in one of my favourite quotes of his):

Before us is some sort of strange dual concept; although both aspects are located at different levels, they nevertheless undoubtedly condition each other. 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". On the one hand, law completely merges with external authority, and on the other it completely opposes every external authority not recognized by it.[5]

Here Pashukanis seems to be agreeing with Agamben – law cannot be understood as operating on the subjective/objective divide of power. Instead law encompasses – dialectically – both of these processes constituting subjectivities autonomous of the state, whilst also bringing in the objective violence of the state. Recognition of this fact also leads to some particularly interesting examples. Thus, the human rights movement and the labour rights movement have both done good things. They have used the law to try and alleviate the suffering of people. Yet – through using the legal form – they have vastly expanded the acceptable range of state power (this could also be linked with Schmitt’s observation that the welfare state has politicised everything and so vastly expanded the range of the political[6]) and legitimated the idea that power is able to intervene in any sphere of social life and must necessarily monitor it for any violations. This is all brilliantly summed up in Rajagopal’s book International Law From Below[7]. This book is perhaps the most theoretically astute of all of the TWAIL works, brilliantly deploying a number of critical theoretical concepts to interrogate the history of the international human rights movement (although it does suffer slightly from the malaise I outlined earlier this month as regards ‘deep’, ‘explanatory’ theory). In respect of the human rights movement Rajagopal notes a certain schizophrenia towards state power:

While these debates [on the possibility of economic and social rights] are important, they suffer from a common schizophrenia and ambivalence: a deep suspicion of sovereignty and state on the one hand (conflating them in that process), and a total reliance on the moral possibilities of the state on the other. That is, while the human-rights discourse celebrates the retreat of the state, the realization of human rights is predicated on the expansion of the state.[8]

Fredric Megret (in a review) puts it rather more starkly in relation to international criminal law:

None of the authors reviewed pays much attention to or seems much perturbed by the paradox that the apex of the human rights movement comes in the form of a tribunal that is not a human rights tribunal properly so-called; nor has there been much notice of the historical irony that the international human rights movement, which started among other things as a challenge of the state’s penal excesses, should end up legitimizing a huge system of criminal repression.[9]

One can only really understand this process through the characterisation of law roughly outlined above – through moving away from the vulgar-positivist concept of law (and I do mean the vulgar view, as opposed to the more sophisticated positivism of today) and towards the conception of law outlined above. I often wonder why it is that Foucault and those he influenced (I think Poulantzas suffers from a similar problem) fail to do this. Sometimes I think it may be down to the fact that they operated in continental legal systems, which are usually portrayed as simple lists of rules emanating from the state.

I think I’ve rambled on long enough (though wonderfully this has made me read a few things for information that I hadn’t touched in a few months and they’re fairly awesome), later on in the week I have a few more Agamben ideas that I want to work through.

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[1] 1998, Stanford University Press

[2] Ibid., p.6

[3] “Preface to the Second Russian Edition” in Law and Marxism: A General Theory, (1978) Inklinks

[4] Richard Kinsey, “Marxism and Law: Preliminary Analyses” (1978) 5 British Journal of Law and Society 202, at p.218

[5] General Theory of Law and Marxism, p.70

[6] Concept of the Political, (1996) Chicago University Press, p.22

[7] 2005, Cambridge University Press

[8]Ibid., p.189

[9] “The Politics of International Criminal Justice”, p.7

Lenin, Lenin and Zizek on rights

Hello dear readers (well those who remain). I will post more soon (if you want me to) but I have terrifyingly busy this term and not particularly inspired. However, I felt compelled to respond tothe furore surrounding this whole 'cartoons' situation. First and foremost I really suggest you read K-punk on this which is for my money by far the best analysis of the whole situation - one which manages to negiotate the twin pitfalls of a knee 'I love freedom of speech' reaction and the 'long live Allah!' response. In many respects this reminds me of Zizek's Against the Double Blackmail, where he states:

What if phenomena like the Milosevic regime are not the opposite to the New World Order, but rather its SYMPTOM, the place at which the hidden TRUTH of the New World Order emerges?

In a rather typical post Lenin (the God of the left blogosphere for what my opinion's worth) addresses the issue of 'free speech' as regards the current problems:

Free speech, then, is in material terms, in this climate, and at this conjuncture, the freedom to denigrate black people, Muslims, Arabs and just about anyone liable to come on the wrong end of Western power. So cut it out. It's not funny any more, just quit it.

Normally, I think I come off as quite the 'moderate Marxist' but in this case I think I agree with Lenin to a large degree. As I hope I have consistently stressed in this blog 'rights' and 'freedom' are necessarily indeterminate, and as such are infinitely contestible - as such specifc conjunctura; balances of class forces will affect them rather a lot. Lenin's analyis spot on as it is reminds me of another Lenin, who (apparently) responded to the question of freedom with:

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

Such is the necessity of a materialist analysis. Freedom simply cannot be understood as some 'idea' eternally floating above all specific historical and material considerations. Rather particular types of 'freedom' must be considered as rooted in and posited by particular material conjunctures and organic tendencies. If one ignores the fact that 'freedom' is demarcated by struggle one lapses into a horrifyingly bourgeois discource (I'm not saying 'freedom' is bourgeois, merely that freedom is a historically and materially conditioned concept). In this regard I really like Zizek's quote vis-a-vis human rights:

So, to put it in the Leninist way: what the ‘human rights of Third World suffering victims’ effectively means today, in the predominant discourse, is the right of Western powers themselves to intervene politically, economically, culturally and militarily in the Third World countries of their choice, in the name of defending human rights.

But. One thing that all of these (exceedingly clever) people seem to ignores it the possibility that conjunctures can change. Whilst I agree entirely that currently many 'rights' are entirely dominated by capital I also understand that their contestibility means that class struggle can change their content. Though I am under no bounds about the historical and material origin of rights (commidty production see my older posts) I also get that in our current organic situation struggle can redefine these rights.

Thus rather than 'abstaining' from freedom perhaps we should be engaged in redefining it...

More on that whole human rights thang...

So in connection with my previous post I have continued along the precarious path of reading complex French philosophy (don’t worry I’m still reading Marxists too). Reading Jacques Rancière’s Who is the Subject of the Rights of Man actually managed to give me some good ideas.

So at the end of my last post I looked into the relatively innocuous question of how those outside of a national framework are able to be interpellated as legal subjects. Firstly, I think that a functional explanation is sufficient to explain why corporations and other international bodies are posited as legal subjects. It is axiomatic that if the legal form is both a product and guarantor of commodity exchange then those subjects engaged in exchange will be interpellated as legal subjects. With the increasing globalisation of trade and the centralisation/monopolisation of capital it is prima facie obvious that these bodies will need to become legal subjects. The same goes for non-economic international bodies, in order for these bodies to actually work they need status as a person, politically they have the support of the most ‘important’ imperialist nations, and so it follows that they will become subjects.

However, there is still the problem of ‘stateless people’. Functionally, there is no need for them to become legal subjects, precisely because they are not engaged in any exchange function. One imagines that as soon as a stateless person is of some ‘use’ to capital then they will be able to become a legal subject (i.e. once they start working).

But this does not really explain how stateless people qua stateless people are able to become legal subjects. Rancière has an interesting – if somewhat impenetrable – approach to this question. Firstly Rancière, as is usual for these people, looks at Hannah Arendt’s Origins of Totalitarianism, where she poses the following paradox vis-à-vis human rights:

She makes them a quandary, which can be put as follows: either the rights of the citizen are the rights of man – but the rights of man are the rights of the unpoliticized person; they are the rights of those who have no rights, which amounts to nothing – or the rights of man are the rights of the citizen, the rights attached to the fact of being a citizen of such or such constitutional state. This means that they are the rights of those who have rights, which amounts to a tautology.[1]

This in essence is the problem that we have as regards those stateless people, if human rights are the rights who have no rights they are nothing. Rancière’s (confusing) solution is that ‘the Rights of Man are the rights of those who have not the rights that they have and have the rights that they have not’[2]. However, he becomes much clearer later, and in fact posits what one might term a materialist explanation.

Basically he illustrates this sentence in terms of the French Revolution, where Olympe de Gouges – a woman – said ‘if women are entitled to go to the scaffold, they are entitled to go to the assembly’[3]. Essentially what she tried to show here was although women were denied political rights, they were entitled to the ‘right’ to be executed for betraying the revolution and thus those who are apparently excluded from the political are in fact included.

For Rancière this is an example of ‘dissensus’. He says:

A dissensus is not a conflict of interests, opinions, or values; it is a division put in the “common sense”: a dispute about what is given, about the frame within which we see something as given.[4]

Furthermore:

[T]hey could demonstrate, through their public action, that they had the rights that the constitution denied to them, that they could enact those rights. So they could act as subjects of the Rights of Man in the precise sense that I have mentioned. They acted as subjects that did not have the rights that they had and had the rights that they had not.[5]

He then abstracts:

It is the opening of an interval for political subjectivization. Political names are litigious names, names whose extension and comprehension are uncertain and which open for that reason the space of a test or verification. Political subjects build such cases of verification. They put to test the power of political names, their extension and comprehension. They not only confront the inscriptions of rights to situations of denial; they put together the world where those rights are valid and the world where they are not. They put together a relation of inclusion and a relation of exclusion.[6]

Now, the idea of a ‘dissensus’ I feel actually has some merit if it is (rather radically) reinterpreted in a materialist fashion. What Rancière has identified here is the gap between the formal and the real in rights discourse. The formal ‘language’ of the rights is only meaningful insofar as it is transformed into real social practice. This is of course the message that Pashukanis and the realists have driven home time and time again.

The point here is that Rancière identifies a ‘conjunctural moment’ in the legal process. The ‘gap’ between the formal and the real, the transformation of the formal into the real is a political matter. Thus Rancière is able to take the Marxian approach of seeing law as politics expressed within a particular form. The problem here is that the ‘rightless’ are not legal subjects so how can it be that they struggle through the legal form?

I would have to say that they don’t. Obviously the struggle to become a legal subject cannot be done as a legal subject; it must be the sphere of politics alone. However, this is not quite correct. What Rancière seems to be saying is that ‘legal concepts’ (such as they are) are tested by those who are not yet legal subjects through the political sphere. This is a case of man proving the ‘this-sidedness’ of a legal ‘concept’ through ‘practice’.

One might perhaps therefore say that this is an ideological-political struggle, in which case one can give credence to Engel’s thesis as regards the elasticity of the law:

[Law] must … be an internally coherent expression which does not, owning to inner contradictions, reduce itself to naught[7]

However, I do not think that such a struggle is purely ‘ideological’. Firstly, insofar as the struggle will aim at real material results it is political. Secondly, the basis of the struggle will not just be the internal coherence of the legal form, it will instead be the objective social relation of the legal form, as is constituted through commodity exchange.

This view is useful insofar as it does not render those without states as passive victims of the machinations of evil Capital. It rather sees within them the embryonic structure of the legal form, precisely because they are struggling to materially constitute it. As Rancière puts it, in a very materialist fashion:

This is also why today the citizens of states ruled by a religious law or by the mere arbitrariness of their governments, and even the clandestine immigrants in the zones of transit of our countries or the populations in the camps of refugees, can invoke them. These rights are theirs when they can do something with them to construct a dissensus against the denial of rights they suffer. And there are always people among them who do it.[8]

Whilst a purely ideological model of dissensus may seem off, locating this in the political sphere does seem important. It perhaps also fits in with the notion of the bourgeoisie having a much greater hegemony than any other class before it, and the struggle some groups go through to gain these rights.

However, it does raise fundamental questions about the intersection between the political and the economic in a capitalist totality. Whilst it is obviously true that in some cases a structural-functional imperative causes a subject to be posited as ‘legal’, this cannot be the case everywhere. There is obviously also the idea that as the commodity form destroys traditional methods of dispute resolution, the legal form must rise up in their place.

But these functional accounts seem to banish class struggle from the realm of the constitution of legal subjects. This however, is not quite the case. Firstly, capitalism is not an autonomous development whilst it does develop through its own internal logic it required a class to smash the old relations of production and being to accumulate. In this way the development of capitalism and by extension the legal form can be explicitly linked to politics during the transition from feudalism to capitalism (note here the notion of ‘bourgeois freedom’). The deeper political question is that raised by Rancière, the process whereby subaltern groups are interpellated as legal subject. A large part of this process will be ‘automatic’ and therefore legal, this is because most people become commodity proprietors and engage in commodity exchange.

However, it seems clear that certain super marginalised groups did not gain such a position automatically; one might here think of racial groups or gender groups. Here, there is more of an ideological-political struggle that is linked to the traditional Engelsian thought on law. In essence here we see people operating within the assumptions and concepts of the legal superstructure so as to point out its contradictory nature. In this way their political struggles can end up positing them as legal subjects. However, it must be remembered that this occurs within the context of commodity production. It is only because the legal form is so widespread that political struggle is able to lead to a legal subject. This is because ultimately ‘right-less’ people are in contradiction to the material structure of mature capitalism, even if political conjunctures make it easy to ignore and fight this tendency.

To be honest I'm not sure if I like what I've just written, but it's done now...

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[1] Jacques Rancière, ‘Who is the Subject of the Rights of Man?’, South Atlantic Quarterly 103:2/3,Spring/Summer 2004, p.302

[2] ibid, p. 302

[3] ibid, p.303

[4] ibid, p.304

[5] ibid, p.304

[6] ibid, p.304

[7] Engels’ Letter to J Bloch, 1890 (MIA haven’t fully transcribed it!)

[8] ibid, p.305/6

The right to have rights

Ok, so my laptop has finally been fixed, rather unfortunately I had to get a new hard drive, which mean I have lost quite a lot of articles and notes on articles – mais c’est la vie. Also, this holiday has been horribly busy, so I haven’t had much time to do anything particularly intellectual. Recently, I have actually started to read some interesting articles. One pretty good one I read ‘The Right to Have Rights’ by Werner Hamacher (South Atlantic Quarterly 103:2/3, Spring/Summer 2004).

The article is essentially a reading of Marx and Arendt vis-à-vis human rights, obviously what I am interested in is the Marxian perspective. Hamacher examines the oft quoted ‘On the Jewish Question’, basically – to put it in somewhat Althusserian terms – the article examines the law from an external perspective. Most of my previous ‘work’ has been looking at the legal form, and legal subjects as posited in opposition to each other. In contradistinction to this approach (and in line with seemingly most of the post-whateverist legal theorists) what is here examined is those subjects who are outside of the law, i.e. those who have a right to rights.

The basic line of argument taken by this position is gleaned from Marx’s work ‘On the Jewish Question’, here ‘Christianity’ is seen to provide the ‘secular religion’ of democracy. Christianity posits religion as primarily a private matter, this meant that the ‘human’ could be perceived as separable from the citizen:

That public, political matters were matters alien to Christians meant nothing other than that the human was henceforth not only a political being, but, moreover, and above all, a social being. Politics, on the other hand, was thereby, however discreetly, transformed into the sphere that was able to guarantee the neutrality of the constituents of the state with regard to the political.
p. 334

Now, although this is ok as it goes, I think reading ‘On the Jewish Question’ in this way isn’t necessarily right. To again sound horribly like Althusser I think we need to read ‘On the Jewish Question’ in the light of the fullest development of the materialist dialectic (i.e. read it in a Marxist way). In this way rather than seeing Christianity as the cause of the shift, a change in the religious form should be seen as symptomatic of broader shifts in the socio-economic order. The rigid separation of private and public was only really achieved with the destruction of feudalism and the rise of the commodity form. It is only at this point in history that the economic ‘backbone’ of civil society is sufficiently ‘separated’ from the direct influence of politics, under feudal regimes politics was directly identified with economics (e.g. the feudal lord is the direct political and economic ‘master’ of the peasant).

But back to Hamacher. He argues that ‘democracy’ leaves a gap between the ‘human’ and the political. The ‘political man’ is defined as against other men and within the framework of a national community. What of course follows is that the ‘human’ in human rights is the ‘political’ man, and therefore only exists within a national political context. Since this is the case those groups of people who are without a nation are not human for the purpose of human rights.

This is a basic outline of Hamacher’s position. I found it pretty interesting, and I have already been thinking of somehow trying to account for those external to the law who have not been interpellated through the legal form as legal subjects, especially because I intend to start reading Agamben. Firstly, it should of course be noted that such theorising is not incompatible with Pashukanis. On the contrary it in facts serves to reinforce his account, insofar as it sees the legal form in very similar terms. What it does force us to do is examine the process by which ‘people’ are interepellated as legal subjects.

The first point I’d like to make is that Hamacher is incorrect to limit his account purely to ‘human rights’, a more interesting account would look at rights in general (particularly as human rights are seen as a ‘last ditch’ set of rights in any case). If we do this then the first point to note is that not only humans are capable of being legal subjects. With the development of capitalism and its (seemingly inexorable) centralisation the commodity form has grown to encompass more complex social organisms. Accordingly these organisms have (of necessity) been posited as legal subjects. Thus the corporation is capable of bearing rights, as are certain political organizations. Secondly, some of these social organisms are not rooted in any particular national-political organization. Thus the UN and certain TNCs are still capable of being legal subjects. Thus we can see that although human rights (and all rights) are conceived as ‘private rights’ they are nonetheless not necessarily rooted in a specific national context. Therefore we must why some subjects without nationality are capable of being posited as legal subjects and some are not.

This in itself is a complicated question which I do not really feel up to answering in all its complexity today. However, I think it might be quite interesting to reconsider some of the earlier stuff I said about the spread of the legal form so we get some insight into what might be the driving force behind the exclusion of certain groups from legal subjectivity.

Firstly, we can examine the first context in which the legal form was articulated. In Rome only a very small number of people were actually ‘legal subjects’. Primarily it was only the ‘heads of family’ who were interpellated in this way. Slaves, women and children were all ‘represented’ by the father. Any offence committed against them was only an offence insofar as it offended or harmed the father. Furthermore, any liability they incurred would accrue to the head of the household. This seems to show that where the commodity form is confined to a narrow spectrum of the economy there will be large numbers of people who are not legal subjects. Only those whose status sees them involved in commodity exchange are likely to be posited as legal subjects.

As the commodity form grows stronger we see the expansion of the legal form. This is accelerated by the destruction of other modes of dispute resolution on the basis of bourgeois ‘freedom’. In this respect disputes not directly related to exchange are nevertheless mediated through the legal form. This might provide a grain of distinction, insofar as we see that corporations are engaged in commodity exchange and insofar as there is a global market it is logical that these organizations become legal subjects. But this seems too neat and functional. Not to mention it smacks of economism, it seems necessary to connect the interpellation of legal subjects to politics but that will be for another post I think…

So yeah, I'll start again properly soon, I wanna do some more posts on this, and a little bit on class struggle and the law, I also reckon I might just branch out into Marxian theory in general, 'cos I often have little thoughts I'd like to jot down.

The End Of Habeas Corpus in Great Britain

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

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

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

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

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

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

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

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

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

Human rights

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Zizek

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

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

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

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

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

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

Some more thoughts on rights

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

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

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

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

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

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

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

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

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

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

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