Pre-Pre-Terrorism

Sorry for the lack of substantive posts, they are coming, and I'd also like to comment on the insightful post addressing my terrorism thing very soon. But I just thought this needed to be flagged up:

Police have carried out what is thought to be the biggest pre-emptive raid on environmental campaigners in UK history, arresting 114 people believed to be planning direct action at a coal-fired power station.

The arrests - for conspiracy to commit criminal damage and aggravated trespass - come amid growing concern among campaigners about increased police surveillance and groups being infiltrated by informers.

Interestingly, notice that this was not done under anti-terror legislation, even though I rather think it could have been. This also addresses something I will say in the aforementioned terrorism comments, namely that anti-terror legislation can't be seen too much as a radical break from pre-existing law or some kind of 'creeping fascism'. Ordinary criminal law can and often has been used in such a way as to capture various forms of non-standard political opposition when this is percieved as particularly threatening. Conspiracy law is particularly relevant here as it was historically deployed so as to criminalise the formation of trade unions.

I think this is important to remember because some civil liberties type are insisting on seeing this anti-terrorism stuff as some kind of rupture as opposed to a contingent articulation and (perhaps) an intensification of an already existing trend.

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

Legislative attack

China Miéville has again pointed me towards an interesting article that I think is well worth flagging up. The whole article is worth reading in full, but I thought I’d quote some interesting stuff from it:

Military experts in law describe attempts to limit the death of bystanders as a pragmatic compromise that seeks to establish the supposedly "correct" relation between a necessary attack on militant targets and the number of civilians killed. The question is what is necessary, what ratio is correct, who is to decide that and who is to judge that. Although the claim that having laws of war is a good thing can still be accepted, it is necessary to be alert to the structural paradox they pose: for when they prohibit some things, they authorise others, and it is the border between the allowed and the forbidden that is the most intense legal battlefield.

International law can be thought of not as a static body of rules but rather as an endless series of conflicts over this border. The question is not which interpretation is right, but who has the power to force their interpretation into becoming authoritative. In this sense, international law does not merely legitimate violence but actually relies on it.

What is think is quite interesting is the notion that the law of war ‘authorises’ some things. I feel like there could be something very interested in this way, particularly when we look at how the idea of the ‘civilian’ is constructed through international legal regimes. Equally, the way in which international law ascribes ‘value’ to civilian life – by counterposing it to some other objective – is interesting. This is worrisome precisely because of the indeterminacy of the law; if the construction of the ‘civilian’ (and his ‘worth’) is always a legal act, it will always be one which is capable of challenge and as such subject to change. In this way, things we might think of as ordinarily civilian can be rendered the legitimate object of intervention. Although Weizman doesn’t have the legal issues exactly right, I think the argument as regards ‘warnings’ is quite productive:

The ability to communicate a warning during a battle is technologically complicated. Battle-spaces are messy, violent and confusing environments. Communicating a "warning" can save a life; but it can also in principle have the advantage of rendering "legitimate" targets whose destruction would have been otherwise in contravention of the law. There can thus be a direct relationship between the proliferation of warning and the proliferation of destruction.

The way that law interpellates individuals on the battlefield could clearly be a very interesting area for further examination. Indeed, I think the general tenor of this fits quite nicely with Pashukanis' attention to subject-formation. The impact of legal categories on media and political language would also be interesting to look at here, particularly the relationship between interpellation and responsibility (e.g. civilians in Gaza are interpellated as potentially legitimate targets by virtue of the particular organisation of Hamas and concomitantly with this - using some of the arguments in the Geneva Convention - responsibility for these deaths is shifted onto Hamas, who are using civilians as 'human shields' etc.).

The Gaza stuff is very telling , and in general the way that international law interpellates all of a subject people as enemies really could be explored further. It would be very useful to map out the practical result of legal language in this area - e.g. when Hamas attacks using its 'indiscriminate' weaponry any non-military personnel killed merit condemnation; when Israel attacks with its 'precision' weaponry, into an area where they are unsure of the exact difference between civilian and Hamas personnel people are interpellated as collateral damage.

Ultimately though, Weizman’s conclusion is a familiar one:

The logic of this realisation may be the need for those concerned with the interests and rights of people affected by war to employ a double, even paradoxical strategy: one that uses international humanitarian law, while highlighting the dangers implied in it and challenging its truth claims and thus also the basis of its authority. In any event, international law should not be the only language of protest and resistance to Israeli violence. The attack on Gaza should be opposed not because it is "illegal", but because it serves the logic of Israeli control of Palestinians.

This I think is right. But we shouldn’t necessarily sacrifice international law’s use as a weapon. Whilst I agree we shouldn’t use IL as our only – or frankly main – language of protest (although not just for reasons of indeterminacy, just because something is contestable doesn’t mean it’s unusable, this is also to do with the particular character of legal argument and its structural affinity for imperial assertions) we obviously can’t abandon international law. So even as we admit international law’s complicity in imperial processes we need to find a way – in certain for a – of forwarding an interpretation that favours the interests of ‘our’ people.

Critical legal theory and cognitive dissonance

Sorry I haven’t updated in a while, but I really feel like I’ve been struck by the curse of bloggers’ block – I literally just couldn’t think of anything interesting to say. I’ve also been trying to read through Arendt’s the Human Condition, which although good, is one of those books that contains an important(ish) observation on every page, and so has to be read fairly closely.

But anyway, I was perusing my RSS feeds when I stumbled upon this. To my horror, as soon as I clicked on the link (and before I even read it) I was going through in my head all of the – I think – legally acceptable arguments Israel could use to justify its assault on Gaza. I then thought about it and realised I’d been doing this a hell of a lot recently. The reason this comes about is obviously for two reasons (both of which come from being a ‘critical legal theorist' – can I count myself as one of those yet?) – firstly, I subscribe to (and defend) the indeterminacy thesis and secondly, I argue that – to some degree – imperial interests are structurally embedded in international law.

Contra this position, there are those who argue that when certain imperialist actions are ‘illegal’ and/or that any legal argument deployed in defence of these actions is just a ‘legal smokescreen’ etc. In order to defend my position against such people I am forced to go through the legal justifications for what I consider barbarous actions, and since my focus has recently been on us ‘taking law seriously’ as an important and ever-present factor in imperial action whenever I see one of these actions I left justifying it in my own head.

But why am I horrified? Surely if I think that legality is – at least in the last instance – rooted in relationships of exploitation and domination and frequently expresses such relations directly in its content I shouldn’t mind that I’m accepting legal justifications for imperial action?

On the one hand, perhaps my reaction shows something of the pervasive power of the legal form in bourgeois society. Thus, even though I rationally ‘know’ that invoking legal arguments to ‘justify’ an act is not necessary endorsing said act. Even though I ‘know’ that the progressive content of a law is always contingent, whereas the form of law is necessarily related to a system of social relations of which I disapprove (obviously too weak a word), I still ‘feel’ the power of the words ‘legal’ and ‘illegal’. In the General Theory Pashukanis says some very suggest (and then remain suggestive, because they are very under-theorised) stuff about the relationship between law, morality, commodity production and (I would infer) personality more generally:

People must relate to each other as independent and equal personalities in order for the products of human labour to be related to each other as values … In fact, man as a moral subject, i.e. as an equal personality, is nothing more than a prerequisite of exchange according to the law of value. Man as the subject of rights is such a prerequisite, i.e. as a property owner. Finally, both these definitions are closely connected with a third, man as an egoistic economic subject. All three definitions are not reducible to each other, and are even contradictory as it were. They reflect the totality of conditions necessary for the realization of the value relationship, i.e. a relationship in which the bonds between people in the labour process appear as the material nature of the products being exchanged. If one abstracts these definitions from the real social relationships which they reflect, and attempts to develop them as independent categories, i.e. by pure reason, then as a result one obtains a tangle of contradictions and propositions which are mutually exclusive. But in the real relationship of exchange these contradictions are dialectically united in a totality.
p.101

On this basis he concludes that ‘the concept of the moral or equal personality is an ideological formation’ (p.102) generated by relationships of commodity production. This can be quite nicely connection with Althusserian notions of interpellation, whereby the function of ideology is to interpellate individuals as subjects; thus law interpellates subjects as rights-holders and concomitantly as citizens, as equal personalities. This close link between equal personality, commodity exchange and the law manifest itself as a particular attitude towards the law. Whilst we may not know the particular contents of the law, the link between subjectivity and the legal form manifests itself as a particular degree of respect towards the general categories of legal and illegal (which are of course particular contents), as Kinsey (1978) (who I wish everyone would read) puts it:

As such it is necessary not to conflate morality and legality. As we have seen the individual, in practice, need have no knowledge of the specific legal norms which regulate his social activity. Indeed the “ordinary” man cannot know the law in all its detail for then he would be no ordinary man at all but a “lawyer”. On the other hand however the law must know the ordinary man and the conditions of his (moral) existence. The law constitutes the ordinary man in the abstract as the “reasonable man”, the “man on the Clapham omnibus”. It is in that sense that the law and juridical/positive morality together specify historically the mode in which the juridical relation is realised in a particular social formation.
p.219

We are always and already subjects constituted – at least in part – by the legal form. As such, perhaps my uneasiness stems from the fact that – notwithstanding my intellectual/theoretical analysis of the legal form – I am still a subject caught up in and constituted by ideology.

Of course, there’s another possibility, linked to the above. Perhaps I have exaggerated the pervasiveness of legality (I don’t think I have). As a subject I haven’t just been formed by general social processes, I’m also a product of an Anglo-American legal education. Again, there are some very interesting things that can be said about the ideological process bound up in legal education. Again what is important here is not necessarily the ‘learning’ of a particular number of norms (the content of the law). What is important instead is the manner in which the law is imparted, the ‘character’ of studies. Some useful observations here can be found on Simmonds (1985) take on Pashukanis’ take on the relationship between legal theory and the legal form:

[I]t is possible to argue that juridical theories are actually produced by the law itself. It might be possible to have a society where rules were established and obeyed for reasons of convenience, changed in an ad hoc manner when seemed desirable, and regarded generally as tools of exclusively utilitarian significance. Such a society would not possess a legal system of the type which interests Pashukanis, or of the type of which we are familiar. The legal order of a liberal, or bourgeois, society is thought of as a more or less consistent and coherent body of rights. Even if the law is thought of in terms of rules, the rules are assumed to be coherent. Contradictions between valid rules are regarded as impossible in principle, and a major task of juristic activity is the dissolution of any apparent contradictions … [I]t can be argued that the notion of the subject as an immobile bearer of rights is itself linked to the presupposition of consistency and coherence within the law … Bourgeois law contains within itself … a continuing pressure for increased coherence … This pressure for increased coherence means that bourgeois law produces juristic theory as fire produces smoke. The search for coherence and consistency at some point reaches a level of abstraction where the enterprise comes to be regarded as “legal theory” rather than “legal doctrine”.
p.137

Not sure I needed to use the whole quote, but I quite like the idea that legal theory is produced by the legal form. I’d want to extent this, the idea of law as a systematic, seamless enterprise is produced in legal education (and it is rather hard to disrupt), even as legal practice seems to contradict this assumption. More than this, one thing we always got told about our legal education was that it was not just concerned with us learning rules, but that we were being taught to ‘think like lawyers’ – this terrifying abstraction perhaps does something to explain my instinctive attraction to ‘legality’ (as Simmonds points out this concern with abstraction helps us see the link between law and liberalism and I think law school produces liberal of a certain-type).

Finally, and this is the explanation I prefer (since it makes me ‘above’ ideology), perhaps my problem is that even if I am relatively unaffected by this legal-fetishism, I am aware that other people aren’t. So, whilst I may be perfectly comfortable with my equation of the legal form and capitalism and on the contingency of progressive nature of legal argument, I know that in characterising something as ‘legal’ or at least justified by convincing legal arguments (which for me are the same thing) this will carry sufficient legitimating power with most people that I am – in some sense – contributing to the legitimation of actions I oppose. Moreover, I am potentially cutting myself off from a fruitful method of opposing such action.

So, what to do with this? At this point I think it’s quite useful to Susan Marks’ (2007) review of Between Equal Rights. In 2003 Marks participated in a collective letter to the Guardian which criticised the Iraq war as ‘illegal’, in Between Equal Rights China Miéville criticised this letter, noting that it seemed to repudiate the idea of indeterminacy and made it difficult to criticise actions which fell firmly within international law. Indeed, as Marks herself notes, it made it particularly difficult to ‘shift gears’ and turn back to the critique of international law. Marks prefers to think of this as:

[A] communicative challenge. How can we find a language that can hold together both formal legal arguments and arguments that criticize legal formalism? How can we express things in a way that makes it clear that determinacy and indeterminacy are not properties of international law, but are themselves arguments which we use in different contexts for different ends?
p.209

So, one way of avoiding the cognitive dissonance I have evinced is to say that indeterminacy is not a property of legal argument, but an argumentative strategy. I just don’t thinks this works though. I guess what I think is that indeterminacy … well … is a property of legal argument. Something is either indeterminate, or it isn’t, there isn’t really a point between. Even if indeterminacy was just a strategy, unless there was some kind of certain criteria that could demarcate when it was legitimate to use this strategy, then international law would still be indeterminate (because the question of when law is indeterminate is itself indeterminate). Indeed, I just think that an anti-formalist formalism (which is all I can really think what this might be), has to be an argument made consciously in bad faith. Now, I can see what in some situations it might be ok to do this, but I think it has to be discussed explicitly.

As some of you will know my solution as to how we grapple with the law is ‘principled opportunism’. Basically, I think that the form of law is rooted in an exploitative social relationship (generalised commodity exchange) and domination and shapes contents that are articulated through it – making it difficult to focus on structural and systemic causes and as such curtailing the transformative potential of legal argument. Furthermore, legalism generally tends to break up collective activity. However, I think it’s fairly clear that progressive interests can be expressed through the law.

So, they key to a progressive legal strategy is to work out how to take advantage of the progressive potential of law’s content, without falling foul of its form. Principled opportunism means that when we invoke legality we don’t do it because of its legality (i.e. its form) but because it advances interests we support. Indeed we support such initiatives in spite of their legality. How does this look in practice, though? Well, the obvious point to note is that there is a conscious instrumentalism at work here – so take this blacklisting business, I would definitely oppose such developments but not for the sake of an abstract ‘right’ to privacy or to holding a political problem. Hence I don’t have a problem with the publication of the BNP membership records and the consequences thereof (and also why I have no problem with excluding BNP members from unions etc.).

Another point is that legality should never be invoked as an independent variable. So I don’t think we should mobilise people with the slogan ‘these acts are illegal’ unless we are very careful about specifying the limits of talk about illegality. But what we can do is mobilise around e.g. a court case centred on said illegality, for instance when people are arguing that a war is illegal as a defence to damaging property. All this has to be done with a conscious disregard for consistence and coherence and full and frank admission as to the indeterminacy of the law.

So, hopefully in this way we help to lessen the legitimating aspects of the law (which ultimately limits relationships of domination and exploitation) whilst taking advantage of legal opportunities that come our way. So I might say – ‘Israel can argue its case’ – but principled opportunism nonetheless permits me to support taking Israel in front of the ICC (ha!) and hoping for the best.

Of course, in practice this support is not going to be as strong as it possibly could be, but I think that’s the price we have to pay to avoid falling into the trap of fully embracing legality.

[Hmmmm…it’s true that the indeterminacy thesis (or at least versions thereof) says groups pursue their interests through the law, and this need not be a ‘conscious’ process. That’s definitely true, but what I think Pashukanis and Marxist approaches more generally point to is that indeterminacy can’t just produce any outcome. Whilst those committed to capitalism can pursue their interests blindly – because the legal form will ultimately uphold their systemic interests – the same thing can’t be said for anti-capitalists. Here, an awareness of the limits of the legal form has to shape the particular strategic approach needed]

Bibliography
Kinsey, R. ‘Marxism and the Law: Preliminary Analyses,’ (1978) 5 British Journal of Law and Society 202
Marks, S. ‘International Judicial Activism and the Commodity Form Theory of International Law,’ (2007) 18 European Journal of International Law 199
Simmonds, N. ‘Pashukanis and Liberal Jurisprudence.’ (1985) 12 Journal of Law and Society 135

Plus ça change...

Unsurprisingly (for me at least, and for others I'm sure), there has been a trickle of stuff in the news noting that Obama may not be quite glorious defender of 'international legality' that we thought he would be. So we've got news that Obama will continue with the extraordinary renditions policy of the Bush administration (sans the 'torture'; also people need to get their terminology straight: 'rendition' or 'ordinary rendition' is taken to refer to transfers regulated by law - e.g. extradition; extraordinary rendition is any extra-judicial transfer and so as such doesn't necessarily involve torture). In a similar vein, we have the news that the Obama adminstration is going to maintain Bush's 'state secrets' policy.

Now, I'll reiterate, this does not surprise me. Firstly, extraordinary rendition was a process that was authorised and used by (at the very least) the Clinton administration, there's a continuity that runs all through from Clinton, to Bush and I suspect to Obama, not to say that there aren't differences but simply that much of the basic 'shape' of the policy is dictated by particular imperial concerns. This links into my second point, I've been quite keen to argue that the legal policies of the Bush administration are very similar to the basic orientation of the Clinton regime (as was spectacularly displayed in Kosovo) basically, I think that - as a response to an obvious decline in hegemonic power for the US - there has been a drive to legally entrench the US' ability the intervene anywhere, at any time 'in the interests of the international community'. The idea that the election of Obama would be able to alter this was always - for me - a bit silly, because I believe that this policy is the reponse to deep-rooted structural problems.

That being said, what initially surprised me was the degree to which Obama has remained within the war on terror paradigm. I was thinking that perhaps we would see a move back towards the old 'humanitarian/liberal interventionism' model because - as Richard Seymour notes - he's got to sell it to his constituency. But on further reflection, I think that Obama's continuation of the 'war on terror' model (which Norm of normblog has gleefully and constantly noted) makes sense in international terms and internal to the US (particularly internal to the US).

So firstly, there is Obama's whole 'post-partisan' thing. The war on terror has significant cross-party appeal in the US. This is linked to the fact that ultimately it strikes me as much easier to defend the war on terror to the American electorate than a policy of liberal interventionism. This is because it is really quite difficult to pitch liberal interventionism as being in people's immediate self-interest (I mean, part of the whole strategy is to defend the idea that such interventions are not self-interested). The trick is to be able to make self-interest coincide - nationally and internationally - with the putatitve interests of the international community. The war on terror is a much easier way of doing this, and earns politicians 'realist' street cred. Internationally, although the war on terror may look like a self-interested power-grab by the US, I still think it holds up as more convincing than a programme of explicit liberal interventionism, especially as it doesn't have so many historical resonances with colonialism. Furthermore, a lot of Obama's base seem to be sold on the idea that post-partisanship requires sacrifice, meaning they are willing to give him an easy ride, telling in this respect is the muted (or non-existent) opposition (and indeed support) of various human rights groups to the retention of extraordinary rendition policy .

Secondly, I've always emphasised that - in terms of form - liberal interventionism and the war on terror are very similar - insofar as both attempt to articulate a legally entrenched hegemonic power. But increasingly, the two are intertwined in terms of substance too, this is particualrly evident with the claim - made a while back by Bush - that liberal, democratic polities are less likely to give rise to terrorism; and the mirror claim of liberal interventionists that liberal interventions stop terrorism (or refugee flows etc.). This being the case, I really do think that much of the difference between the two is really one of emphasis, which is why liberal bombers were able to come on board so quickly (another obvious point is that in the clash of civilisations rhetoric that forms the bedrock of the war on terror, the enemy is seen as illiberal, fundamentalist barbarians).

But, onto my third point, this difference in inflection can be crucial. A few years ago Ryan Goodman wrote an very American political-sciency (but nonetheless good) article on Humanitarian Intervention and Pre-texts for War, in it Goodman suggests that humanitarian intervention is actually a fairly terrible pre-text to go to war, insofar as it creates 'blowback'. Basically, by phrasing the intervention as humanitarian it sets up a certain series of expectations on the part of the population of the intervening states. These are to do with the methods of warfare (hard to say carpet bombing is humanitarian), other justifications (hard to act explicitly in your self-interest) and how you negotiate (you should be aiming as quickly as possible for peace). Goodman argues - fairly convincingly - that humanitarian intervention tends to limit the publically acceptable scope, extent and methods of warfare as compared to - say - war over territory. But such considerations are much more difficult in the case of a war that is addressed against terrorists - indeed precisely because terrorists are non-state actors who live amongst the civilian population the opposite considerations may come into effect - of course schools, hospitals etc. will be blown up but that's the terrorists' fault. So, here, the utility of the war on terror argument is that it maintains the scope of humanitarian intervention, maintains also its transformative aims - liberal deomcracies/western protectorates don't produce terrorists, but totally manages to avoid the restraints that humanitarian intervention might bring into play.

So, I suspect Obama is going to stick with the war on terror. Obviously, it will not be exactly the same, notwithstanding the retention of extraordinary rendition, I expect some of the more overt abuses will be significantly toned down. There's also going to be less posturing on the issue of international law and legal nihilism. I also think that there was something of a civilising influence that humanitarian intervention invoked (however tiny) and the scope of the war on terror is at least as wide as humanitarian intervention (and we need to avoid the idea that the war on terror was ever just about deploying military force).

We really should have seen this coming, since Obama only ever seemed to campaign as being a more sensible manager of the war on terror.

Newey on torture

Soz folks, nothing really substantial again, just thought I'd flag up this interesting little piece on torture by Glen Newey in the always invaluable London Review of Books. Particularly relevant to my mind are these passages (emphasis mine):

Sometimes the surgery ran into complications. For instance, Article 2.2 of the Convention against Torture, to which the US is signatory, states: ‘No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.’ By the standards of legal covenants, this seems pretty plain. But the waters muddy when attention turns to the definition of ‘torture’. A reservation entered by the US to the Convention specifies that torture is to be understood as set out in the US Constitution. Sands argues that a second memo signed by Yoo wrongly advised Bush’s counsel Alberto Gonzales that the reservation meant that the US could legally set a higher threshold for physical and mental torture and remain in compliance. But, as Yoo’s memo to Gonzales points out, it’s not clear that any of the provisions of the Vienna Convention (to which, anyway, the US is not party) limiting the scope for treaty parties to enter reservations apply. Sands remarks that the US ‘could not change the international legal obligation’ (his emphasis); but that still leaves room to specify more closely what kinds of act the obligation proscribes.

This I think it absolutely correct, and something that has to be more readily admitted by the anti-Bush brigade. Much of the argument was not that 'torture is ok' in times of crisis etc. A lot of the most sophisticated argument was simply that the acts in question did not meet the relevant threshold of torture. Certainly, a lot of people are coming out of the woodwork at the moment saying 'actually it was torture', but I don't think that negates the fact that at the time the strategy of the Bush administration was simply to say - look, we're allowed to use some methods of interrogation that go further than torture - of course we are.

[And this is a problem that I think international lawyers have to face up to squarely. It seems to me that international law 'forces us' to think like a bourgeois state, insofar as people making legal argument have to accede to 'reasonable' demands such a state might make, like - 'well of course we have a right to defend ourselves' or 'well of course we are allowed to interrogate people' etc. It strikes me that once you step into this particular discursive field everything just becomes a matter of degree, which makes things rather murky. A case in point is - I think - Israel, once we adopt the 'legal' viewpoint we are forced to acknowledge the 'reasonable' demand that Israel must have some recourse against Hamas rockets, once you're in this place you also have to accede to the reasonable demand that this right can't just extend to 'killing the same number of people' and you're already at least entertaining Operation Cast Lead as a possibility. This is the exact same thing that goes on with the war on terror, once you enter international law's discursive field on these issues and you are forced to 'think like a state' it becomes very difficult to resist a good deal of the war on terror's logic.

This is obviously quite badly phrased but I think there could be something to this. Note to self - link this back to Orford's stuff on international law as 'narrative'.]

Sands rues the fact that the law was fitted to the policy. But law is not an organic whole for politicians and bad lawyers to mangle. No doubt the mangling is real enough. But law is a shape-shifting congeries of norms, precedents, opinions, opinions about opinions, claims to authority, and – when reasoning fails to deliver a decisive outcome – power-broking, for example by vote, as in the Supreme Court’s verdict on Hamdan.

In other words, it’s all a bit like politics. Faith in the ‘majesty’ of the law as transcending or trumping the grubbiness of politics looks like what it is: a reversion to charismatic authority. That is why those, like Ronald Dworkin, who like to supplement or supplant democracy with judicial decisionism, think that there must always be a ‘right answer’ to questions of law. The right answer turns out to mean identifying the rights that right-thinking judges think we should have.

Firstly, one is tempted (and Newey may already be saying this) to push the last sentence a bit further. Because when he says 'right-thinking' judges this can surely only refer to 'judges that share my views', as Schmitt noted all those years ago, the apparent recourse to judicial decisionism is always always just a displacement of the political. So actually, I don't think we're dealing with - and indeed we cannot be dealing with - a simple reversion to charismatic authority, even Dworkin has judges who he doesn't like (especially as he's from the US) Indeed, to my mind, anyone that reads Dworkin cannot help but notice that he really, really sounds like a liberal-Schmittian (I know the term sounds like a contradiction in terms, but read him and you'll see what I mean), simply putting a happy gloss on Schmittian decisionism.

Secondly, I think the whole 'fact that the law was fitted to the policy' is something that has to be examined further. Ultimately, I think, as does Newey, that if the law is indeterminate - or at least under-determinate enough that there can plausibly be a number of 'right answers' - what else do political actors do except shape the law around their policies. That being said, it's not necessarily the conscious, cynical manipulation that this might imply (although this obviously happens too) I often suspect that the legal justification advanced is 'naturally' the one that fits. This could also - I think - be linked to the 'state perspective' that international law provides; international lawyers are naturally pre-disposed towards thinking 'reasonable' interpretations are those which reflect state interests. There's also the third - empirical - consideration to make, from what I can see this is the standard procedure for states: they have a problem and they ask their legal advisors to evaluate its legality, with this there is going to be explicit and implicit pressure to 'make the case' (and this may be the way the question is put) for the policy.

I think this deserves more, but my mind has kind of turned to mush. But I will close by talking about some of the interesting observations of others. Firstly, Scott Newton, at the thing in Glasgow (who has a wonderful turn of phrase) described the legal form as constituted of subjects who are 'operated' by social actors in a strategic context. Secondly, China Miéville on recognition (in Between Equal Rights, 2005: Brill):

Of course to claim, based on this political understanding of recognition, that such recognition is illegitimate, is to stick to the implausible theory of international law as a body of rules. If it is instead understood as a process, then such politically informed manipulation and creation of legal facts is precisely the constitutive fabric of international law itself. Recognition, in this case, might be criticised as imperialist, immoral, stupid, or many other things, but it is nonsensical to criticise it as illegal.
p.236

If international law is a constitutive part of the political process (if indeed we are to take international law seriously) then it is no surprise to see that political argument is expressed in legal terms and that international law is intimately interconnected with international politics.

Duncan Kennedy on Gaza

Sorry, no substantive content once again (some small stuff is coming, but I've been caught up in doing a few other things too), but just wanted to flag up CLS supremo Duncan Kennedy's take on the Israel assault on Gaza (which I was sent via Akbar Rasulov), much of it is the standard - but necessary - analysis of the historical context. But there are some very interesting passages to quote:

Numerous observers have charged Israel with committing war crimes during the war. Without downplaying that aspect, I think it is important to understand the 1,300 Palestinian casualties, including 400 children as well as many, many women, versus 13 Israeli casualties, as typical of a particular kind of “police action” that Western colonial powers and Western “ethno-cratic settler regimes” like ours in the U.S., Canada, Australia, Serbia and particularly apartheid South Africa, have historically undertaken to convince resisting native populations that unless they stop resisting they will suffer unbearable death and deprivation. Not just in 1947 and 1948, but also in Lebanon in 1982 and 2006, Israel used similar tactics.

Causing horrific civilian deaths is often perfectly defensible under the laws of war, which favor conventional over unconventional forces in asymmetric warfare. The outright “crimes,” like the My Lai massacre, Abu Ghraib, or Russian massacres in Afghanistan and then in Chechnya, are less important for the civilian victims than the daily tactics of air assault, bombardment, and brutal door-to-door sweeps, meant to draw fire from the resisters that will justify leveling houses and the people in them.

It's very important to understand that much of what Israel does is motivated by the classic colonial problematic - 'what the hell do we do with the natives!' (but with some very modern twists). Indeed this really has to be emphasised more, because it helps frame the actions structurally, and is frankly more convincing than reducing everything to individual 'electoral moves'.

I think the second paragraph is absolutely right - and something that the left really has to emphasise. Although there may well have been Israeli war crimes, the greatest 'crime' of all - this particular assault and the attendant loss of life, but also Israel's long history of oppressing the Palestinians - is effaced by the highly specific focus on certain actions and events (I know I keep banging on about this). Indeed, without even going back to the wider context, the initial assault - and the massacres it occasioned - can quite plausibly be argued to be legal.

[As an aside - there was some recent news about Barak threatening a "disproportionate" response in Gaza, but this is silly. As I've often said, we have to ask 'proportionate in relation to what?' whenever we talk about proportionality. In the case of Gaza, the assault need be proportionate to the number of lives lost. Instead things get much more nebulous - especially because a lot of the war on terror legal argument - because what is the 'proportionate' response to a continuing threat? Bear in mind that lots of legal commentators accept the initial invasion of Afghanistan as a legitimate example of self-defence as against the continuing threat of terrorism, in other words, the proportionate response to a continuing threat was the invasion of a country and the overthrow of its government (transformative self-defence); applying that logic to the Gaza situation, it may be quite difficult to think what exactly a disproportionate response would look like].

As Kennedy notes, the law also embeds a certain model of warfare (again I talk about this a lot but I think it's important; if any of you have the time read this, although I'm not always enamoured with postcolonial stuff, this particular essay is fairly awesome) , which tends to support technologically advanced, centralised militaries as against more diffuse forms of combat (this maps perfectly onto the 'two-track' system of international criminal justice Zolo talks about) - viz. the rules are rules of imperial war. So, we might want to talk about war criminals - I'm uncertain about this and I think it brings its own problems - but we certainly need to criticise the law too, because it's hugely deficient.

Our goal is not to tie down the army, but to give it the tools to win in a way that is legal

Really interesting article I got sent via China Miéville on the international law division of the IDF, I will comment properly on this at some point, because it strikes me as something that could be theoretically rather useful:

The idea to bombard the closing ceremony of the Gaza police course was internally criticized in the Israel Defense Forces months before the attack. A military source involved in the planning of the attack, in which dozens of Hamas policemen were killed, says that while military intelligence officers were sure the operation should be carried out and pressed for its approval, the IDF's international law division and the military advocate general were undecided.

After months of the operational elements pushing for the attack's approval, the international law division headed by Col. Pnina Sharvit-Baruch gave the go-ahead. In spite of doubts, and also under pressure, Sharvit-Baruch and the division also legitimized the attack on Hamas government buildings and the relaxing of the rules of engagement, resulting in numerous Palestinian casualties. In the division it is also believed that the killing of civilians in a house whose residents the IDF has warned might be considered legally justified, although the IDF does not actually target civilians in this way

Edit: again from China, the plot thickens:

Prime Minister Ehud Olmert came to the defense of Col. Pnina Sharvit-Baruch on Sunday, speaking out against those seeking to prevent her from taking up a teaching position at Tel Aviv University when she finishes her IDF career in the coming weeks.

Some Thoughts on Imperialism and International Law

Richard Seymour (i.e. Lenin of the Tomb) has written some very interesting pieces that touch on issues close to those I have recently addressed – namely the historical and theoretical relationship between imperialism, humanitarian intervention, self-defence and the war on terror. Both of these pieces are very insightful and I would recommend people read them (although I assume such a recommendation on my part is pointless, as I doubt anyone who reads my blog doesn’t read the Tomb). That being said, I have a few nit-picky concerns with Lenin’s stuff, particularly as concerns the role an importance of [international] law.

Who has the right to self-defence?
One of the important things that I think has to be done with this post is to properly disaggregate all the legal issues and then use them to properly frame some of the problems that Seymour identifies. So, to start with, he notes:

It might be argued that today the lower caste of states do have some rights of self-defence, but these are heavily circumscribed. Thus, the ruling caste reserves for its exclusive use the right to weapons of mass destruction, to aerial bombardment, invasion, and so on. Israel has a right to all of this but, say, Iran does not.

Immediately, there is a problem. Seymour is conflating the right to use self-defence, with the degree of force which can be used in self-defence and the degree of force that can be used more generally in an armed conflict. Although this may seem like a pedantic distinction, I’ll argue later that it’s actually pretty important.

In a similar vein, Seymour points out the centrality of statehood to many of the arguments defending Israel’s actions, noting:

The question of statehood is important. It is not uncommon for Israel's supporters to emphasise the fact that it is a sovereign state while its designated foes (Hamas, Hezbollah, Fatah, Islamic Jihad etc) are non-state actors. This emphasis presumably derives from the perspective of Just War theory…

Perhaps, perhaps, perhaps. But it strikes me that the more sophisticated defenders of Israel’s actions don’t really need to refer directly to Walzer on this point. Instead all that needs to be referred to is international law, which although increasingly concerned with non-state actors, still takes the sovereign state as its main actor. Indeed, in international law, the right to self-defence can only be seen as accruing to states. Thus, I’ve noted before, the anomalous character of the Palestinians in international law really muddies the water. Historically, in the period of decolonisation (when there was a really radical Third World movement) this argument was less prevalent, precisely because the question of violence in pursuit of self-determination by non-state actors was so vital to their interests. But with the general move away from an international law whose agenda genuinely was – to some degree – shaped by these movements this argument seems to have disappeared (and to be honest may well surface in the imperialist camp with the perhaps Kosovo/Georgia serving as a bit of a harbinger to this).

It’s important to note this, I think, because it actually buttresses Seymour’s more general argument. International law’s focus on statehood (as opposed to just Walzer’s) is deeply exclusionary. As Anghie and the TWAIL movement have shown us, the centrality of the sovereign state to international law has a genetic connection to the old exclusionary/transformative notions of a Family of Nations that were around in 19th century international law. These notions of statehood were irreparably bound up with notions of European (and I would insist capitalist) notions of internal social organisation. I think this is important to note because it’s not just some commentators who embody these commitments but very fabric of our international order.

The general thrust of Seymour’s work is particularly provocative and although I find it persuasive I think the above caveats would lead me to slightly different conclusions to him. Seymour argues [this is a long quote but I think it’s worth engaging with]:

This caste arrangement was once structured by claims of racial solidarity, such as those of Anglo-Saxonism. Such are the origins of the 'special relationship' between the US and UK in the later 19th Century, in which the US resisted the urge to annexe any part of British territory in Canada or the British West Indies while the British not only acceded to American expansionism but embraced it at key points, such as during the 1898 war. Anglo-American competition did not disappear, but it was twinned with a new strategic orientation based in part upon racial sentiment and fear of emerging rival imperialisms of Russia and Japan. At this point, race and conceptions of democracy were inseparably intertwined, the latter seen as a function of the former. That is, for American imperialists such as Theodore Roosevelt no less than for the British empire, democracy was appropriate to the 'white race' which had alone reached a state of self-government.

The trend since 1945, however, has been to make racism invisible - as Robert Vitalis puts it, there is a pervasive 'norm against noticing' the way in which the global order is powerfully structured by race … It would be pedantic to list the examples of democratic states that have been targeted for subversion and military attack by western states, or the democratic movements that have felt the iron heel of western repression. It is sufficient to note that in the most recent case of Israel's 'self-defence', the opponent has been the elected government of Palestine. Such violence by western states is neither democratic in method nor in aim, unless one is willing to descend to the argument that by definition political coercion by democratic states constitutes an enlargement of democracy's scope.

I have to say I have a real problem with this. Whilst historically it is true that much of the old international law was racialised, this racism was of a cultural/social/economic type, rather than of the biological type (or it was at least an odd mix of the two). This is particularly notable because although the standard of civilisation was not always applied ‘fairly’ there were a good many ‘non-White’ states which gained full legal personality, or were at least granted ‘semi-civilised’ status. Once we hit early on in the 20th century (I don’t know exact dates for all of this) China, Japan, Egypt etc. were all fully sovereign. There are two driving factors behind granting these countries sovereignty – one is the direct, immediate interest of imperial powers, so as China Miéville points out (Between Equal Rights, 2005, Brill at pp.240-250) the recognition of certain states as possessing some sovereign rights was essentially driven by the fact that the major imperialist powers had made treaties with these nations that simply had to be accounted for.

The second factor was the internal character of the states – which comes from both 19th century international law and the Mandate System – essentially once many states genuinely had massively altered their internal life so that they were large, capitalist centralised nation-states they were granted some legal personality. Ultimately, I would argue that can again be (more broadly) related to the idea of ‘interest’, these nations were forced to reorganise so that they would be more suitable for the spread of international capitalism. To my mind the racialisation of these issues is secondary, or rather, much of the racism is as ad hoc as the notion of civilisation (indeed the two are bound up), often responding to particular imperial interests.

I would argue that the above considerations hold true today, albeit in a modified form. So, Seymour is right to point out that – to some degree, although again we shouldn’t go nuts about this either – ‘democracy’ has assumed a similar role to civilisation. He is also right to point out that in practice this notion of democracy is highly flexible as a good number of democracies have been undermined by Western states – often mounting some kind of international law claim [although as an aside I think part of this comes from the very formal notion of democracy deployed by Western states; democracy is a set of institutions – largely symbolised by continuing elections – and rights – often property rights but also an abstractly free press etc. – which have to be guaranteed for the future. This allows substantively democratic movements who do not meet these conditions to be ignored, whereas brutal reaction acting in the name of these commitments to be supported].

But I really don’t think this is a racialised notion. To my mind this is – as civilisation was – much more about the interests of imperial powers. The West didn’t undermine Latin American or Arab leftist regimes because they weren’t white, they did it because these regimes contradicted their interests (and let’s not forget that the CIA ran operations even against some of its 'allies'). It seems to me that the criterion of democracy – as noted in my very long square brackets – has responded much more clearly to interests than to race. Now, often the two coincide, and I think some of this is just contingent – Europe developed capitalism first, Europe expanded first; so capitalist organisation is European – but it’s telling that imperialists don’t seem to care about the colour of its puppet regimes’ skins and will happily support some ‘brown-on-brown’ (and even brown-on-white) action should it support their interests.

Conclusions
Putting all of this hodge-podge together with some new stuff I want to make some conclusions.

Firstly, international law often has an abstract standard that it applies to everyone – this may not always be done fairly but in principle people support this. This abstract standard is something like – all states have the right to self-defence etc. But very often although this standard is abstract it essentially universalises a certain way of doing things which gives imperialist states a massive advantage. So every state has a right to self-defence. More importantly for us the rules regarding what it is permissible to do in war are massively in favour of high tech imperialist states. So, long range weapons which can’t be aimed properly (i.e. rockets) are ‘indiscriminate’ and as such any attack by them is per se impermissible. But long range, high-tech ‘smart’ weapons which nonetheless kill many more civilians are not per se indiscriminate and so the standard of proportionality, which is often largely a whitewash.

Indeed this abstract focus on direct-ness often operates in such a way. Whilst it is a war crime to directly target any civilian not taking part in the hostilities, it is not per se a war crime to launch an attack knowing that it will kill civilians not taking direct part in the hostilities (which leads to the ridiculous situation where a civilian driving an ammunition truck cannot be shot, but the truck could be blown up). As Marx noted, applied equal standard to unequal people is a right of inequality.

Often this is the favoured tool of the imperialists because it allows them to claim faux equality whilst massively reinforcing their own interests.

Secondly, outside of this equal standard there are some formally unequal standards that attempt to entrench imperial power within the law. Humanitarian intervention is one of these – insofar as the right clearly doesn’t accrue to everyone. More important in this respect is the War on Terror – which in practice is an attempt to entrench the right of certain states to intervene military unlimited by temporal or spatial considerations.

But, I believe that resort to this type of logic – and to some degree it underpins most Israeli interventions – often is a sign of weakness. The preferred method of imperialist states is surely to be able to operate through the ‘normal’, formally equal channels of international law as this allows them to avoid accusations of – well – imperialism. I think the vital point is that these sort of logics only come into play in the case of weakness or inter-imperialist rivalry. As I have previously noted, the US only resorted to strategies such as humanitarian intervention or the war on terror because it was facing opposition in the Security Council (although not initially with the war on terror).

What is common about both of these strategies – to my mind – is that whilst there may be something of a ‘colour line’, this colour line is secondary to, or viewed through the prism of, imperial interests. So, whilst the standards may be somewhat Eurocentric, this is – I think – largely because capitalism and imperialism grew up here (as it were). China Miéville – in his forthcoming article on Haiti – has a fascinating reflection on the relationship between international law and capital accumulation, arguing that we might well conceive international law as serving to facilitate capital accumulation. This is something I may run with in the next few years (providing someone gives me money to do a PhD), as we can interestingly see the initial period of exclusionary international law as linked very much with primitive accumulation. Present international law – and the way that it facilitates certain types of imperial violence – can be useful conceptualised in terms of accumulation by dispossession, allowing imperial states to intervene against those who are proving problematic for accumulation.

It’s vitally important to distinguish between these two and condemn them both. Because if we argue only that the second type (of formal exclusion) operates, we allow our opponents to point out the way in which genuine formal equality does operate.

Obama the Imperialist
I find this piece much more straightforward to agree with, so I’m not going to comment on it massively. One thing I would say is that the attacks in Pakistan seem to indicate that Obama won’t necessarily be dropping the ‘war on terror’ moniker (not that it really matters because, in substance, it is much the same thing as liberal interventionism). Indeed, in many respects Obama may simply strengthen the US’ claims to imperial exceptionalism. In the case of Bush it was ridiculously easy to point out the flaws and contradictions in claiming to love freedom etc. because of the obvious mistreatment of vast numbers of people – Guantánamo and extraordinary rendition being the most evident. But Obama has been quite decisive in ending much of this ‘spectacular’ mistreatment (through a series of spectacular moves of his own) whilst maintaining the claims as to American exceptionalism. The spectacular is actually quite a useful category for examining the transition from Bush to Obama. Bush (and the opposition to him) embodied the spectacular insofar as his administration was involved in some very spectacular forms of violence – torture, detention without trial, shock and awe. These forms of violence were vehemently opposed by a coalition of liberals and the left. But the point is that the US claims to exceptionalism should not just be undermined by spectacular violence but structural violence too – the prison industrial complex, immigration, poverty, complex racial problems. Since much of the opposition to the Bush administration was based on spectacular violence, Obama’s spectacular renunciation of much of this violence leaves him in the perfect position to argue for a renewed American exceptionalism.

John Bolton was very telling on election night – arguing that with the election of Obama the US could no longer be criticised for its racial problems (around 1:10). Ultimately, then, I fear that a lot of what China Miéville has said has come to pass – by emphasising the ‘revolutionary’, spectacular problems of the Bush administration (which did give us some allies) – we have undermined our abilities to criticise that which follows it, and may even have inadvertently created the conditions for a revitalised American exceptionalism.

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.