Lair Of A Squirrel Red


by Rob
January 27, 2008, 5:09 pm
Filed under: law, Rob, war on terror

And so once again the government has gone on a big terror offensive, and once again it seems to be an ill-conceived one. Here are a series of random thoughts on what I think about the idea of 42 days detention without charge. My first point to note is that this proposal represents a general trend towards the ‘infinite’ which is replicated in a lot of the countries which are participating in the war on terror. As its ‘high point’ this tendency is represented by Guantanamo, but I don’t think it’s an exaggeration to call this a moment in the same trend. So here are a few ideas about why 42 days detention (were it to become law) would prove anything but an exception.

Definition of Terrorism
As part readers of this blog will know, the way in which terrorism is defined in the United Kingdom has been a real bugbear of mine. The definition of terrorism which is operative in UK legislation is taken from the Terrorism Act 2000:

(1) In this Act “terrorism” means the use or threat of action where—

(a) the action falls within subsection (2),

(b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and

(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.

(2) Action falls within this subsection if it—

(a) involves serious violence against a person,

(b) involves serious damage to property,

(c) endangers a person’s life, other than that of the person committing the action,

(d) creates a serious risk to the health or safety of the public or a section of the public, or

(e) is designed seriously to interfere with or seriously to disrupt an electronic system.

(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.

(4) In this section—

(a) “action” includes action outside the United Kingdom,

(b) a reference to any person or to property is a reference to any person, or to property, wherever situated,

(c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and

(d) “the government” means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.

(5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.

 

So, to sum, an act is a terrorist one if involves serious violence to a person, or serious damage to a person and is done to ‘influence the public’ or to advance ‘a political, religious or ideological cause’. This is obviously a hugely broad definition which includes (as a possibility) pretty much every political grouping in the UK today (as they all advocate this to some degree). Presumably then, if one is suspected of planning violence towards people or property for a political end there is the possibility of being detained for 42 days without being charged.

Of course, in practice ‘terrorist’ will usually be taken to mean ‘Islamic terrorist’, but even then the wide-ranging nature of the definition can feasibly cover protest which ends up in intended property damage. Furthermore, there is no guarantee that this would not be extended past this ‘core’ of ‘terrorists’ (not that I think this core is acceptable), there is nothing in the wording which doesn’t mean this might extend broadly to a number of political groupings which we wouldn’t think of as ‘terrorists’. Having established the ‘infinite’ character of the ‘definition’ of terrorism, we go on to consider some other elements of the proposals. The Home Office has offered four examples when the power might become activated.

The foiling of a major plot
There are problems with this right off the bat. What is a ‘major’ plot? One which kills a number of people? One that damages a lot of property? But this of course raises another question how much is enough? Perhaps the proposed law will set a number of people that might be killed which we be sufficient to count as a ‘major’ operation. But this itself would be difficult, does anyone really want to make the type of moral judgment calls that say ‘only ten people could die, well that’s not enough’?

So it seems to me that even in the abstract a ‘major’ operation is one which is hard to judge. This is of course compounded by the fact that the 7/7 bombings would presumably be treated as a major operation. Now, whilst the bombings are obviously abhorrent the fact is that only 50 killed were people in them, if this is taken as a benchmark for a ‘major’ operation, then I would imagine it could extend to a good number of ‘potential’ terrorist operations. Linked to this of course is the fact that it is ultimately impossible to know in advance how major a terrorist operation is likely to be. This is one of the true problems with ‘pre-emptive’ detention, just like pre-emptive self-defence it has to act before the ‘attack’ has taken place, but it is not possible to know how serious it will be in advance. Compounding this is the fact that by definition there is an absence of evidence in these cases (hence the need for longer detention). What this all tends to mean is that it will be very difficult to determine a ‘major’ attack before it happens.

A complex individual case
It strikes me that by definition any case which the police will request an extension for is one which is ‘complex’. If the case was not complex enough to warrant 42-days detention then presumably the police would simply have charged the suspect. Bearing this in mind, I fail to see how – in the abstract – such a category could be particularly useful. However, it is probably the case that this would be part of an overall justification, but this of course brings exactly the same problems prior.

A major operation
I take it ‘operation’ refers here to the size of the police operation. Again, this strikes me as problematic for the reasons raised above. Presumably a major police operation is one which corresponds to the threat of a major terrorist attack. I question how it is that the ‘size’ of an operation can really be judged. So again, it seems of certain, possibly unlimited application.

An operation involving many countries
Many countries? One? Two? Three? Involving? How close of a link? All of which seems to belie the fact that apparently we are living in an age of ‘international terrorism’ with international terrorist networks etc. It strikes me then, that even if a threshold is established for what constitutes ‘international’ this will still be massively over-inclusive.

These brief considerations are only meant to argue one thing. This is that the apparent ‘exceptional circumstances’ that might be generative 42 days are entirely indeterminate, in that they don’t provide any real guidance for a decision-maker as to when it is that the power becomes active. In effect then, the power becomes ‘infinite’. This is of course a function of the ‘discourse’ on terrorism, which posits that terrorists are everywhere, and always a potential threat. But the point is that this threat is always unknowable in advance, therefore anyone is a potential candidate for intervention.

Resolution?
Of course, ultimately this doesn’t necessarily matter. I personally would argue that indeterminacy is a structural condition that is thrown up systematically by the contradictory nature of the legal form. Since the law is a form of social regulation that operates as between abstract individuals it constantly oscillates between ‘protecting the individual’ and ‘protecting the public’, these two imperatives basically mean that diverse outcomes can be justified. The point therefore is not what the ‘law’ says, but what the decision-maker does (a decidedly Schmittian point I know). So what we have to question is – bearing in mind the potentially infinite character of such provisions how will they be resolved?

Here, of course there are a plethora of inquiries we could make. Schmitt, for instance, at first resolved this is a decisionistic fashion. Thus, he tended to argue (in Political Theology) that this decision would ultimately read of the personal decision of the decision-maker. Later he realised this position was probably inadequate and moved towards what he called ‘concrete order’ thinking, whereby institutional priorities are what determines a decision (he advocates this position in On the Three Types of Juristic Thought which people tend to ignore). Then there are the American Realists, who tended to argue that economic factors were the prime determinant of decision-making. I tend to think that our inquiry into decision-making cuts across several lines. Firstly, we do have to understand that an individual (or group thereof) is making a decision. But this decision is informed by a number of factors, these are primarily economic, political and (dare I say it) ‘moral’, but these factors are articulated within an institutional matrix. With this in mind, I think we should take a look at the way in which the ‘decisions’ about 42 days will proceed:

A chief constable and the director of public prosecutions ask the Home Secretary to authorise the extension which remains in force for up to 60 days. She then tells Parliament within two days the 42-day rule is available to police.

A judge has to approve the holding of each suspect for more than 28 days and the terror powers watchdog overseas the case. Parliament gets a vote within 30 days of the law being activated – and if they object, the 42-day power is quashed. If they approve, the power remains in force for the full 60 days.

Parliament cannot quash the power at the outset. If police applied to use the power on day 27 of an arrest, and Parliament did not get an opportunity vote until two weeks later, then an individual would have been held for the full 42 days before MPs had been able to oppose the measure.

The first point to note is that there will always be a tendency for ‘public pressure’ about being ‘soft on terrorism’ to push decision-makers towards deferring to the police. The constant threat that they might be responsible for the next big terrorist attack is something that will be politically important to Ministers and MPs and morally important to Ministers, MPs and Judges. This is reinforced by my analysis earlier – that it feels particularly difficult to say this number of deaths would not be sufficient to warrant depriving someone of their ‘liberty’. Furthermore, there is the pretty much omnipresent discourse about ‘the police’ which permeates everything, our society has a tendency to venerate the police and everything they say and do, although there may currently be problems, it still seems a political taboo to question the veracity or accuracy of police statements.

It seems to me that we can pretty well rely on a Home Secretary to go with most of what the police say about threats etc. Aside from the general political pressure, it is clearly the case that the institutional position of the Home Office tends to push Home Secretaries towards authoritarianism, or at the very least listening to the police. Now whilst this may not be the case in respect of pay, I tend to think that in respect of ‘security’ the Home Secretary will always agree with the police.

I’d imagine that – to a large extent – most MPs would be the same. Here I think we have to draw a distinction between the abstract and the concrete. I think that it is quite possible MPs will oppose an abstract law, which makes it possible to detain people, especially on the basis that it is ‘not needed’ or is ‘hypothetical’. This is because they can claim to be in favour of liberty as against hypothetical problems etc. But, when they are faced with the Chief Constable telling them ‘if we don’t detain this person there is a possibility he will conduct a major terrorist attack, for which you will be responsible’, things may be slightly different. This is of course always compounded by the fact that the police are unable to give all the evidence they have a their disposal, for fear of giving away informants etc. Ultimately, it seems to me that the political cost of going against the police and then being proved wrong is much better with agreeing with them and detaining an innocent man.

And finally the judiciary. Well, I think it is probably a little bit more complex. Firstly, it is the case that judges – as they are not elected – are not subject to direct political pressure in the same way that politicians are. This being said, judges are still participants in the collective, communal life of the country, and so as such are subject to some of the same forces. Furthermore, although judges are not direct participants in the ‘democratic’ political process they are nonetheless a constituent part of our political system as a whole. As such, their position can be threatened or strengthened in given political conjunctures. One need only observe the mini-declaration of war by Lord Woolf a while ago, to understand that judges are just as ‘political’ as your average MP.

Secondly, people tend to invoke cases like the Belmarsh detainees case to show that the judiciary is either ‘soft on terrorism’ or ‘finding the right balance’. But of course this is problematic, especially if one actually examines the reasoning in that case. In the wake of 7/7 the House of Lords (with the exception of Lord Hoffman) acknowledged that there was a public emergency which threatened the life of the nation. This meant that the only question was whether the measures were proportionate or not. The majority concluded they were not because there was no rational connection between the means and ends, and because there was irrational discrimination. In theory both of these problems could have been overcome by locking up everybody up rather than just foreigners. This being said I haven’t read many of the recent cases on control orders, so I’m not entirely sure about this.

Ultimately, when it comes to the judiciary, I think that they are less likely to immediately lock people up. But I do tend to think that when faced with the stark opposition between ‘liberty’ and ‘security’ a judge may ultimately choose the latter. Simply because there is always the chance – no matter how small – that he will be ‘responsible’ for a terrorist attack. Putting someone in such a concrete situation does not – for me – seem conducive towards finding a balance.

In lieu of a conclusion
So what do we conclude here? I think the first point is that the particular shape of the ‘enemy’ in the ‘war on terror’ (and indeed its characterisation as a war) tends to push ‘law’ to its indeterminate limits. This ends up creating exceptions with infinite grasps. But of course a concrete decision has to be articulated within this context. And it strikes me that any concrete decision will be so agonising, that seems to me it will allow for an unchecked expansion of this power, I leave everyone with a quote by Žižek (on torture) which seems appropriate, if not entirely so:

If the choice is between Dershowitz’s liberal ‘honesty’ and old-fashioned ‘hypocrisy’, we’d be better off sticking with ‘hypocrisy’. I can well imagine that, in a particular situation, confronted with the proverbial ‘prisoner who knows’, whose words can save thousands, I might decide in favour of torture; however, even (or, rather, precisely) in a case such as this, it is absolutely crucial that one does not elevate this desperate choice into a universal principle: given the unavoidable and brutal urgency of the moment, one should simply do it. Only in this way, in the very prohibition against elevating what we have done into a universal principle, do we retain a sense of guilt, an awareness of the inadmissibility of what we have done.


Cross postage.

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The State of Official Marxism in China Today – David Kotz by korakious
December 13, 2007, 12:03 pm
Filed under: China, Communism, law, Marxism, Neoliberalism, Theory

The following is from the archives of Monthly Review. David Kotz, author of “Revolution From Above: The Demise of the Soviet System”, one of the best works on the fall of our Soviet motherland, gives a report on the various views aired at a conference on property rights held in China. The similarity of the terms of the debate to those in the late USSR is striking

During November 13–14, 2006, I participated in an “International Conference on Ownership & Property Rights: Theory & Practice,” in Beijing. This was not just an academic conference, it was related to a sharp debate taking place in China at that time over a proposed new law on property rights.1 Although none of the presentations at the conference made any direct reference to the proposed new law, everyone knew that it was the subtext of the conference debate.

The positions put forth by the participants in this conference provide an interesting window into the ideological struggle over the direction of social change in China. They illustrate the ways in which Marxist language and Marxist propositions, intermixed with ideas drawn from mainstream Western neoclassical economic theory, are used today in China to support the completion of China’s shift to private property and a market economy. Below I will reproduce some of the statements and positions voiced (and written) at this conference. But first some background information will help to place the statements in their historical context.

The supporters of the proposed property rights law were arguing that further economic progress in China required that private ownership of business enterprises and other assets must be made more secure. To achieve this end, a new law was needed specifying, and more importantly guaranteeing, the rights of owners of private property.

Critics resisted the proposed new law, charging that it represented a step toward abandoning the socialist system. They argued that guaranteeing private property rights, and elevating them to the same level as public property rights, would undermine the key role of state owned enterprises (SOEs) in a socialist system. To make matters worse, critics charged, the new law could potentially even safeguard the ownership claims of those who ended up in control of former SOEs that had been privatized through a corrupt insider deal.2 This would encourage further fraudulent privatizations of SOEs. Further, they argued, it would legitimize the exploitation of labor which occurs in private enterprises.

Such political debates are normally difficult to observe in China. This debate had been taking place in various locations in Chinese society, including academic institutions and various Communist Party and state institutions. The above conference provided a way for an outsider directly to observe, and even participate in, this debate.

The main sponsor of the conference was a little-known bureau of the Central Committee of the Chinese Communist Party (CCP) called the Central Compilation and Translation Bureau. The conference was cosponsored by the Rosa Luxemburg Foundation of Germany, which is attached to the Party of Democratic Socialism. The latter is descended from the Communist Party of the former German Democratic Republic.

While there were a few foreign participants, most were from China. The Chinese participants included professors from various Chinese universities, researchers from the Academy of Social Sciences, and some party and state officials. Among the latter there was one from the Development Research Center of the State Council, which provides policy advice to the prime minister, and one from the Central Party School. The foreign participants were quite diverse intellectually and politically, with most of them selected by the Rosa Luxemburg Foundation. I am known in China as a critic of neoliberalism in general, and privatization in particular, and I was invited to present a Marxist analysis of ownership and property rights in the United States that might be relevant to the property rights and privatization debate in China.

It has long been commonplace to read in the mainstream media that political debates in China are typically conducted, not just behind the scenes, but in a kind of Aesopian language. In this conference Marxism was the official language of discussion, at least for the Chinese participants. Despite the enormous transformation of China’s economic and social system since the beginning of what is called the “market reform and opening” in 1978, a kind of “official Marxism” remains the formal state ideology and the language for discussion of economic issues. Thus, most of the Chinese speakers at this conference, whichever side of the debate they were on, couched their views in Marxist language and often used traditional Marxist propositions to buttress their claims. However, Western neoclassical economic thought has become dominant in the leading economics departments at universities in China, and in many cases it was neoclassical ideas that underlay the comments of the speakers, whatever the language used to express them.

A final relevant piece of background information concerns the class structure of China today and its relation to the CCP. Originally membership in the CCP was open to workers, peasants, and intellectuals. The rapid development of private business starting in the early 1990s created a class of indigenous capitalists who, while wealthy and increasingly influential, were at least officially barred from membership in the ruling CCP. Then a few years ago, after a sharp political struggle, the CCP membership rules were changed to open membership to “entrepreneurs.” Reverberations of that political battle, as well as the one over property rights, could be heard in some of the conference presentations.

Readers can now appreciate the remarkable statements and positions put forward by various participants in this conference. In a few cases I provide a direct quotation, but most of the statements below paraphrase the main theses or points made by various Chinese speakers at the conference. Each statement below was made by at least one Chinese speaker, and some were repeated, with variations, by several speakers. In some cases I have added interpretive or clarifying comments in brackets. I begin with statements by participants who favor the current direction of social change in China—which represented the vast majority of speakers—and end with pronouncements by the few who either oppose China’s march to capitalism or are at least resisting the distortion of Marxism to justify that march.

Statements and Themes from the Conference

  • When an SOE is turned into a joint stock corporation with many shareholders, it represents socialization of ownership as Marx and Engels described it, since ownership goes from a single owner to a large number of owners [among others, this was stated by someone from the Central Party School].
  • If SOEs are turned into joint stock corporations and the employees are given some shares of the stock, then this would achieve “Marx’s objective of private ownership of property.”
  • In dealing with the SOEs, we must follow “international norms” and establish a “modern property rights system.” [As in the Soviet Union and Eastern Europe at the end of the 1980s, the terms in quotes were euphemisms for capitalist norms and capitalist property rights.]
  • Enterprises can be efficient in our socialist market economy only if they are privately owned. [This statement, voiced by several people, comes directly from Western “neoclassical” economic theory.]
  • SOEs exploit their workers and are state capitalist institutions, and SOEs often have a very high rate of exploitation. [The point was that privatizing SOEs will not introduce exploitation or capitalist relations since both are already present in SOEs.]
  • The nature of ownership of the enterprises has no bearing on whether a country is capitalist or socialist. Enterprises should always be privately owned and operated for profit. What makes a country socialist is that the government taxes the surplus value and uses the proceeds to benefit the people through pensions and other social programs. [Along with justifying privatization, this implies that, as China’s economy becomes much like those of the United States and Western Europe, China is not abandoning socialism since, by this definition, all of the industrialized capitalist countries are actually socialist.]
  • The United States has companies with millions of shareholders, which is a far more socialized form of ownership than anything that exists in China.
  • “[After the Second World War] Capitalism not only gave up its fierce antagonism to labor, but even began combining with labor….Modern capitalism…is gradually creating a new type of capitalism that is more like socialism.”
  • The CCP followed the correct approach, in line with classical Marxism, during the period of New Democracy [i.e., the period directly following the 1949 liberation, when the party said it was completing the bourgeois democratic revolution but not yet trying to build socialism]. The change in policy after that period [when the party shifted its aim to building socialism] was an error, and instead the New Democracy policy should have been continued. [This was spookily similar to the widespread argument in Moscow in 1989–91 that the Soviet Communist Party should have stayed with the New Economic Policy of 1921–27, which called for a mixed economy with a significant role for private business and with market forces playing the main coordinating role.]
  • Besides current labor and past labor [the latter the Marxist term for the labor required to produce the means of production], there is a third type of labor, namely “risk labor.” Marxist theory should take account of this third type of labor, which is expended by those who take risks through entrepreneurship. [The obvious point was that “entrepreneurs,” i.e., capitalists, are a type of worker, and hence it is correct that they are allowed to join the Communist Party.]

As I listened to these themes—and as I raised questions about them in the question/discussion periods—I had a strong feeling of déjà vu. Many of them were the same themes I had heard (and had argued against) in Moscow in 1991, the last year of the Soviet Union, coming from Soviet academics and party and state officials.

Now for some comments by Chinese conference participants that swam against the private property and privatization tide:

  • A thorough study of the original German versions of Marx and Engels’s writings on communism shows that they clearly viewed communism as involving the abolition of private property. Those who have argued that this idea arose from a mistranslation of Marx and Engels’s works are mistaken. We should not distort Marxism to justify current policies. [Some “Marxists” in China have been arguing that Marx and Engels never actually wrote that communism would involve abolition of private property.]
  • Privatization is not the right solution to the problems of the SOEs. The right to use capital should belong to the workers and serve their interests.
  • “Informal privatization” [in which an SOE’s director illegally turns it into his private company] creates capitalist enterprises and should not be permitted.
  • While some SOEs may have low profit rates, profitability is not a good measure of an enterprise’s contribution to social and economic welfare.
  • The many Chinese economists who support the theories of Ronald Coase [a rightwing British property-rights theorist who is known for opposing any significant state regulation of private business] are mistaken. The Chinese followers of Coase claim that Marx had no theory of property rights and that Coase supplies the property rights theory that China needs. On the contrary, property rights are the legal manifestation of production relations, a relationship which Marx analyzes at some length. Contrary to Coase’s view, private property is not necessary for efficiency. Public ownership should be primary. [This older leftist academic economist cited at some length statements by the well-known U.S. left-of-center economist Joseph Stiglitz condemning the work of Coase. The reliance by a leftist Chinese economist on the pro-capitalist—yet somewhat heretical—U.S. economist Stiglitz to make a criticism of Coase reminded me of 1991 in Moscow, when the few leftist Soviet economists struggled to criticize free market theory by citing people such as John Kenneth Galbraith.]

Notes
1. The new “Property Rights Law of the People’s Republic of China” was passed by the National People’s Congress on March 16, 2007.
2. After such corrupt insider privatizations, the newly privatized enterprise is often then sold to a third party, who at least officially was not involved in the original privatization process. Opponents charged that one of the provisions of the proposed new law (article 106) would hold the final owner blameless and secure that person’s right of ownership, as long as the final owner could claim that she or he obtained the property with “benign intent.”



Jack Straw, Human Rights and the 21st Century by korakious
October 25, 2007, 11:24 pm
Filed under: law, Marx, Rob, Theory, UK politics

Just heard a speech by Jack Straw on ‘Human Rights in the 21st Century’, although by virtue of his position as politico the talk was of course slightly incoherent it was nonetheless interesting for several reasons. Firstly, the speech has to be read with the recent government announcement on a ‘Bill of Rights and Duties’, secondly the speech’s tone and structure give us some idea of the general government position on rights, thirdly I think Straw’s inchoate theoretical probings actually provide a useful foil for people like me. So – seeing as I had nothing else to do – I thought I’d give a rundown of what Straw said and my own opinions on the matter.The first thing that Straw was keen to stress (and something that is quite telling about his attitude towards the Human Rights Act (HRA)) was that historically and culturally Britain is a country that has been at the heart of the human rights project. He rightly pointed out that British lawyers were at the heart of developing the European Convention on Human Rights (ECHR). Further, he put forward the position that ‘human rights’ are a tradition that has been rooted in British life since the Magna Carta. Whilst I agree with the latter point as far as it goes I’m pretty sceptical about it. Although it seems clear that Britain’s rights tradition does coincide with the content of the ECHR it certainly does not have a content of positively enumerating rights and then ‘balancing’ these rights with exceptions. Rather, the British tradition of ‘liberty’ is of one where one can do whatever is not forbidden. However, the effort to ‘domesticate’ human rights is one that speaks volumes about Straw’s position, clearly Straw is attempted to combat the typical accusations of the press the the HRA and the ECHR are alien impositions foisted on Britain by an ever-expanding Europe.

However, as was rather predictable, Straw begins to move to our present ‘context’. For Straw the post-Cold War situation has been marked with the growth of an ‘enabling state’ and the spread of democracy to most of Europe. But simultaneously with this there still remain a number of authoritarian states and (dum dum dum) the growth of an international terrorist movement that operates outsides the bounds of ethics and leality. He further noted that this terrorism was qualitatively different from previous forms of terrorism because:

  • It is truly international, with non-national terrorists operating from foreign states with foreign backing
  • The terrorists have access to large and powerful weapons (biological, chemical, nuclear etc.)
  • The aims and scope of the terrorists are very different from preceding forms of terrorism

Now, I will refrain from immediately commenting upon this particular assesment of the threat of international terrorism, at least until I discuss the relevance that Straw attributes to this. What is particularly interesting is that Straw (unlike certain members of the Government and the Opposition) doesn’t seem to think that the HRA is inadequate in dealing with terrorism. In fact Straw thinks the HRA is absolutely necessary in order to ‘establish and marshall the lawful bounds of our [the government’s] response [to terrorism]’. Straw did seem to have some problems with particular decisions by the court – particularly concerning deporting people to places where there is a real chance they will be tortured (he prefers a substantial chance) – but in general he seems supportive of their overall approach. Personally, I actually found this to be quite gratifying, especially after hearing Dr. Reid’s ranting for as long as I had to. However, Straw did note that although he wishes to maintain the ‘principles’ of human rights, he thinks there are some issues with the applications.

Straw proceeded at this point to utterly demolish the Tory analysis of the Human Rights Act, this was awesome and very little needs to be said on it. The most interesting part of Straw’s lecture came in his amateur sociological examination of modern capitalism. Basically, Straw argued that there has been much deeper structural changes than just 9/11 which influence Britain’s culture of rights; basically he pinpoints two key features:

  • There has been an increase in the heterogenousness of the British population and he links this to the problem of communities ‘separating’ out etc., obviously this would lead to a decline in a national/collective/public life
  • Globalisation has made people much less deferential, independent and empowered; but this has also turned people into ‘consumers’ peoples’ primary identity therefore is not as the citizen but consumer

Straw then argued that this ‘consumerism’ is incompatible with ‘politics’ – as politics requires people consider their long-term interests, make some sacrifices for the social whole and engage in meaningful public participation. According to Straw the result of this process has been that our rights have become ‘commoditised’ (what a hideous, hideous word – has the man never heard of the term ‘commodified’!?). Rights are exercused so as to injure others, with no concern for the ‘public good’ or our collective right. Furthermore, people become covetous of the rights of others, which they view as a type of ‘possession’.

Whilst this is all very interesting I really don’t see why we need to tie it in with globalisation. The critique that Straw advanced is one that has been advanced countless times pre-‘globalisation’, in fact here is a rather famous analysis which bears remarkable ressemblence to Straw’s:

It is puzzling enough that a people which is just beginning to iberate itself, to tear down all the barriers between its various sections, and to establish a political community, that such a people solemnly proclaims (Declaration of 1791) the rights of egoistic man separated from his fellow men and from the community, and that indeed it repeats this proclamationat a moment when only the most heroic devotion can save the nation, and is therefore imperatively called for, at a moment when the sacrifice of all the interest of civil society must be the order of the day, and egoism must be punished as a crime. (Declaration of the Rights of Man, etc., of 1793.) This fact becomes still more puzzling when we see that the political emancipators go so far as to reduce citizenship, and the political community, to a mere means for maintaining these so-called rights of man, that, therefore, the citoyen is declared to be the servant of egotistic homme, that the sphere in which man acts as a communal being is degraded to a level below the sphere in which he acts as a partial being, and that, finally, it is not man as citoyen, but man as private individual [bourgeois] who is considered to be the essential and true man.

And who made this critique? Why it was Karl Marx in his On the Jewish Question. The basic structure of this critique has been voiced by conservatives, liberals etc. What I would argue here is that the vision Straw presents to us – of civil society as a collection of egoistic individuals whose main form of contact is through clashing rights – is one which is constantly reproduced by capitalist society. The whole point is that this can’t really be overcome by simply cementing new political forms over it, since these forms don’t tend to touch the social relations which produce certain forms of social life and since – as Marx notes – politics is conceived only as a means of guaranteeing or affecting one’s private, egostic sphere.

I would further argue in this vein that actually the whole idea of rights-based politics and rights-culture presupposes this state of affairs. This is where Straw really screws up in my view, the idea of rights being ‘commoditised’ (arrrgh!!!!) really seems to miss the point that the very right-form is grounded in the notion of an egoistic, individual man with an inviolable area of space, that is to say that the right-form is bound up with the commodity form:

None of the so-called rights of man, therefore, go beyond egoistic man, beyond man as a member of civil society – that is, an individual withdrawn into himself, into the confines of his private interests and private caprice, and separated from the community. In the rights of man, he is far from being conceived as a species-being; on the contrary, species-like itself, society, appears as a framework external to the individuals, as a restriction of their original independence. The sole bond holding them together it natural necessity, need and private interest, the preservation of their property and their egoistic selves.

All of this means that Straw’s solution – reminding people that rights also entail duties towards others – is kind of lame. I mean, he makes a really interesting critique (or at least I read him as doing so) but simply can’t go beyond the right’s based framework. But the point is that unless you go beyond the rights-based framework you can’t possibly transcend the notion of man as a ‘consumer’ as the defining characteristic of life. Inga Markovits traces this quite well in her examination of the differnce between ‘bourgeois’ and ‘socialist’ rights, as she first argues:

As individual entitlements, bourgeois rights confer autonomy in a limited area, which then can be exercised at the discretion of the rightholder. In a way, all bourgeois rights are modelled after property rights: they map out territory, set up fences against prospective intruders, or, to quote Marx, they delineate the elbow room of the individual capitalist.(Socialist vs. Bourgeois Rights: An East-West Comparison; (1978) 45 University of Chicago Law Review 612-636 at 614)

She then fleshes out this conception arguing that it results in a focus on dispute, precision and individualism. This critique dovetails nicely with Marx’s, and seems a hammer in the coffin for Straw’s analysis.

So, ultimately, my real issue with this bit of Straw’s speech was that he tried to present this phenomenon as something ‘new’, whereas it is one which he plagued capitalism since its outset. Further, his proposed solution is uniformly rubbish, and in facts would result in no change whatsover. Though actually this is something Straw seems to love to do. As a lawyer he oftens realises what the law is but then proposes some change to the law which is not a change at all.

Ok, I’ve written way too much, and it’s all got rather rambling, but on the plus side, at least it’s not about RESPECT!



Law by korakious
May 19, 2007, 7:22 pm
Filed under: law, Pashukanis, Rob, Theory

Why law?

In order to stop my fellow vanugardist from constantly heckling me about my laziness and lack of a work-ethic I have decided to make a post. Frankly, I reserve the Right to be Lazy and fear that my comrade is infected with a hideous managerial work ethic. Anyway, this will not be the normal type of post here, as I am not Scottish. I am also far too much of a student for my own good, hence the content of this post.

So basically I am interested in Marxist approaches to the law. More specifically I am not a ‘Marxist looking at the law’ or a ‘lawyer who likes Marxism’ but I make some attempt to do both (although this shouldn’t be mistaken for an attachment to the law – because I’m really not). So in this post here I basically attempt to justify my odd position (although there are certainly a few contemporary Marxist legal theorists), and say why it is we might focus on law.

So the first thing I want to say is that a there hasn’t really been a lot of Marxist work done about law as a specific phenomenon. There have been quite a few works which (of necessity) include law as an element of the social totality, but many of these haven’t really been able to grapple with the specificity of law. So a lot of the time you’ll just hear that law is an ‘expression of the will of the dominant class’ or something, which – although it might have some useful content – tells you nothing about law as a specific phenomenon.

In this respect there is really only one ‘classic’ work of Marxist legal theory – E.B. Pashukanis’ General Theory of Law and Marxism – this is a work which has influenced me quite a lot. So I suppose later on in some posts I will expand upon the some theoretical points (or rather I’ll link or re-post some old stuff) and show how taking an in-depth position on legal theory (bearing in mind there is no revolutionary movement without revolutionary theory) actually does serve at least some practical purpose.

So, here I’m just going to outline some reasons why I think it’s interesting and important to have a Marxist account of the law. Basically, I want to move from more abstract questions to concrete questions, although obviously these two factors are intimately related.


Law and Liberalism

Anyone who wants to make any sense of liberalism has to engage with the law. On one level this is obvious. Most of the classical liberals from Hobbes to Locke to Montesquieu to Rousseau all had to explicitly deal with law. In fact in many of these account the law assumes an absolutely central role (Hobbes is someone who really springs to mind in this instance).

The importance of law to liberalism isn’t just a happy accident, it’s a result of the structure of liberal thought and its presuppositions about ‘human nature’. Whilst it’s always difficult to define a political position as amorphous of liberalism one can find certain commonalities of liberalism. Firstly, liberals have a certain theory of human nature – basically this holds that (at the very least) human being have a propensity towards selfishness and individualism. Closely linked to this is the fact that liberalism starts from the‘naturally independent, autonomous’ individual.

From this perspective you come to the central problematic of liberalism (and what I think is the best way to frame this). If you have a group of individual, selfish agents who need to interact in some way how can you fit this together. Since these individuals are meant to be independent, each with their own ‘plan of life’, they can’t be unified by any broad ‘purpose’, or good, or status.

It is at this point that the law becomes useful. Law is therefore seen in a double sense. Firstly, as people like Grotius thought it served as a way of demarcated the autonomous sphere of each individual. It creates a kind of shield of interlocking rights and duties. Secondly, and this is in a more Hobbesian vein, law serves as a non-moral ‘trump’ to individual disputes. This ‘trumping’ function is also how you can ‘coordinate’ the diverse lives of these ‘autonomous individuals’, because it provides a conclusive guide to what happens when individuals come into dispute.

But in a way this begins to seem a little contradictory, law is a device which both coordinates (in its trumping sense) and dissociates (in its ‘demarcating sense’), Pashukanis notes this contradiction, saying (General Theory of Law and Marxism, p.70):

Law is simultaneously a form of external authoritative regulation and a form of subjective private autonomy. The basic and essential characteristic of the former is unconditional obligation and external coercion, while freedom is ensured and recognized within definite boundaries. Law appears both as the basis of social organization and as the means for individuals “to be disassociated, yet integrated in society”. On the one hand, law completely merges with external authority, and on the other it completely opposes every external authority not recognized by it.


Without the law liberalism (ideologically) completely falls apart. It is forced either to revise its central presuppositions about human nature, or reject the autonomy of the individual, or support a Hobbesian ‘state of nature’.

It is not accidental therefore that the radical anti-liberal critiques concentrated to a large extent on the role of law and rights within liberalism. The main example of this is Carl Schmitt, German fascist and utter bastard – yet someone who focused particularly on the intersection of law and liberalism. But there is also Marx’s famous On the Jewish Question, and numerous bits of Lenin.

Now of course, this all remains rather abstract, but I think it does address real concrete problems. Firstly, the intimate connection of law and liberalism might tell us to be slightly wary of raises slogans about the ‘rule of law’, and making paeans to it. Furthermore, we of course live in a broadly ‘liberal’ society, and as such one in which law assumes (at least at first sight) a particularly important role.


Law and Capitalism

Of course, this all seems rather airy fairy (and believe me it will remain so), stuck in the ‘idea’ of liberalism. Yet, as I have argued before, liberalism is a product of capitalism. I’ll briefly go through this connection, and then I’ll explain some other reasons why capitalism and law are deeply interconnected.

The presuppositions of liberal theory begin to make sense when you analyse the historical transition from feudalism to capitalism (bearing in mind this was a long transition). So basically (and this is very sketchy) feudalism involved individuals being placed into static, customary rules. Their ‘rights and duties’, such as they were, arose by reference to their position in the political order.

The basic point is that in the transition to capitalism this status was demolished by the commodity form. Guilds and hereditary castes were broken up; the old system of land tenure (the connection of the peasantry to the land) was destroyed. So what we have here is a situation where individuals increasingly resemble the liberal vision of them. They no longer have any status based connection with their employer/employee, instead it is a relationship based solely on a cash nexus.

But simultaneously with this you have a great drawing together of people. Increasingly, owing to capitalist manufacture people are brought together, disputes inevitably arise, demarcation needs to take place. And here is the relationship between liberalism and capitalism, the problems of liberalism are the problems of capitalism – how do increasingly disconnected individuals, who are nonetheless brought into contact find a way to be ‘dissociated yet integrated’. So, in capitalism, as with liberalism, law plays a central role.

However, and as I will make clear later, the connection between law and capitalism runs deeper than the one described above. The above description shows that law is connected to capitalism because of the ‘solution’ to some of the problems it throws up. However, I (and in fact anyone who follows Pashukanis) think that there is a more structural connection between law and capitalism. This is a topic that is beyond the confines of this (already overlong) introduction. It is something I have written about before and will write about later. However, there are some opening things I would point out.

The most important thing to first note is that central to capitalism is the commodity. The commodity is the ‘unit’ of capitalism, and through the unfolding of its internal structure, and through many mediations you will eventually reach the state of the world today. However, as Marx notes:

It is plain that commodities cannot go to market and make exchanges of their own account. We must, therefore, have recourse to their guardians, who are also their owners Commodities are things, and therefore without power of resistance against man. If they are wanting in docility he can use force; in other words, he can take possession of them. In order that these objects may enter into relation with each other as commodities, their guardians must place themselves in relation to one another, as persons whose will resides in those object, and must behave in such a way that each does not appropriate the commodity of the other, and part with his own, except by means of an act done by mutual consent. They must therefore, mutually recognise in each other the rights of private proprietors. This juridical relation, which thus expresses itself in a contract, whether such contract be part of a developed legal system or not, is a relation between two wills, and is but the reflex of the real economic relation between the two. It is this economic relation that determines the subject-matter comprised in each such juridical act.

In other words, the commodity relationship posits and presupposes the legal one, since in order to exchange a commodity (and a commodity is only characterised by exchange) one must recognise someone else as your equal. This connection is vastly important since it shows the primal connection between law and capitalism. On the level of commodity exchange (and this incidentally is why law pre-dates capitalism) the two are irrevocably and structurally linked.

This is of course central to the arguments of Lenin and Engels on the link between bourgeois ‘equality’ and the commodity form.

With this established one can go on to consider how the law is important to more concrete, everyday situations, which I’ll talk about next time I post. Also, I’ll talk about why I think my philosophical orientation is best.