Taking Aim


The massive protests in the UK against Donald Trump and his abhorrent “Muslim ban” show that there is potential for building a mass, anti-racist, pro-migrant movement in the UK and elsewhere. Many of the people who attended these protests have no background in political activism, but have been spurred into action by Trump’s blatant racism and reactionary stances – there is a palpable anger, and this can play a crucial role in realigning politics in the UK.

However, anger, no matter how righteous, is not enough. It is crucial that this nascent movement from the very outset engage in serious, critical reflection and debate about what sort of politics will be necessary to challenge Trump, and the broader, systemic pathologies of which he is a particularly malignant symptom.

In this regard, one key misapprehension must be challenged from the outset: Trump and Brexit (a clumsy, now almost meaningless term) are not the same thing – failing to see this will set any emerging oppositional politics on a course of ultimate failure. John Harris and others have spun the lazy Trump-Brexit conflation, and argue that if we are angry at Trump and oppose his politics, then we (and in particular Labour MPs voting in Parliament on whether or not to trigger Article 50) must also oppose Brexit and set the UK on a different, pro-European course.

The move Harris, and others, make here is one from correct premises to wrong conclusions. The argument, seductive in its simplicity, is as follows: Trump is patently racist and we oppose him – many of the leading voices for Brexit are racist – therefore we should oppose Brexit also. The problem with this is that it erases history and context: it ignores the fact that, whether in or out of the EU, any British government would have slovenly towed the US line; that the EU itself is structurally racist; that the processes of EU integration have engendered racism and seen the growth, within the EU, of far-right parties, not as an aberration, but as a necessary consequence of the truncated sort of integration that the EU represents; and, on a very simple note, that Theresa May, now arch villain, was herself a vocal campaigner for remaining in the EU.

The premise that we oppose and despise Trump and his politics only leads to the conclusion that we should, therefore, seek to overturn the Brexit referendum result and remain in the EU if we completely fail to understand the nature of the EU, and the differing contexts that gave rise to the Brexit vote and the Trump victory.

The fundamental problem is well captured by a scene from John Steinbeck’s novel The Grapes of Wrath. In it a tenant farmer is told by a worker that his house is to be demolished and the following exchange ensues:

“I built it with my hands. Straightened old nails to put the sheathing on. Rafters are wired to the stringers with baling wire. It’s mine. I built it. You bump it down—I’ll be in the window with a rifle. You even come too close and I’ll pot you like a rabbit.”

“It’s not me. There’s nothing I can do. I’ll lose my job if I don’t do it. And look—suppose you kill me? They’ll just hang you, but long before you’re hung there’ll be another guy on the tractor, and he’ll bump the house down. You’re not killing the right guy.”

“That’s so,” the tenant said. “Who gave you orders? I’ll go after him. He’s the one to kill.”

“You’re wrong. He got his orders from the bank. The bank told him, ‘Clear those people out or it’s your job.’”

“Well, there’s a president of the bank. There’s a board of directors. I’ll fill up the magazine of the rifle and go into the bank.”

The driver said, “Fellow was telling me the bank gets orders from the East. The orders were, ‘Make the land show profit or we’ll close you up.’”

“But where does it stop? Who can we shoot? I don’t aim to starve to death before I kill the man that’s starving me.”

This poignant exchange reveals the problem we now face. People are angry, and rightly so, but they are not clear about who or what they should be angry at.

This is not to be wondered at. The system we live under operates in myriad ways to obscure, occlude and mystify the nature of power and how it operates. In this context, Trump makes things somewhat easier. He is a villain, and patently so. Obama wasn’t as blatant, yet he deported more people than any US president before him, militarily intervened in dozens of countries around the world, and was pushing the much hated TPP and TTIP trade agreements, he also, incidentally, was in favour of the UK remaining in the EU.

With Trump, now, we have an easy, minor premise: he and everything he represents must be resisted, by any and all means. However, we need to dig deeper to work towards correct conclusions about where this should lead our politics. To build a radical, anti-racist and socially progressive movement in the UK we cannot retreat into the reactionary liberalism that seeks to sustain the EU at all costs. Likewise, in the US, building an alternative to Trump cannot be premised on embracing Hilary Clinton and establishment Democrats.

We can, however, draw some inspiration from Clinton’s long-time partner in crime, her husband Bill. In his 1992 campaign for President of the US, Clinton’s team coined the famous phrase ‘it’s the economy, stupid’, and they were more right than they could imagine. To the extent that Brexit and Trump (along with Erdogan, Putin, Le Pen etc.) have something in common, it is that they represent the morbid symptoms of the capitalist system (the economy, stupid) in terminal decline.

The rise of the populist right represents a misguided rejection by angry, scared people of the status quo ante. Where the left fails to offer genuine, radical alternatives, the right prospers. The EU, notwithstanding what “some sillies” (as E.P. Thompson would have termed them) in DiEM25, Another Europe is Possible etc. would like to think, is irredeemably a set of institutional arrangements for the maintenance of this status quo. If we wish to build on the anger and passion that the nascent anti-Trump movement represents, then we must not make the mistake of conflating opposition to Trump with defence of the EU.

Trump is the enemy, but capitalism is the problem. In the coming months and years political positions will be clarified, and it is crucial that we are clear-headed from the outset. If, at this juncture, you find yourself celebrating a pillar of the Tory party, and cheerleader for austerity, for his speech against Brexit, but criticising a lifelong socialist who has consistently stood against Trump’s spiritual predecessors, because he has taken the position that the fight is not to maintain the EU, but to build a more just UK, then you may need to re-calibrate your political coordinates.

A good place to start with this would be by rejecting the simplistic, Guardian editorial line that opposition to racism necessitates support for the EU. The real fight is for a genuine alternative to Trump, and everything he represents. This means breaking with the centrist liberalism that created the conditions for Trump’s ascendancy, and challenging the extant system at a fundamental level. This is not done by pining for a mythical EU that never was, but by directing our legitimate anger against racism, sexism and the capitalist system in its entirety. This is no easy task, but it is the necessary one if the anger against Trump is to be transformed into something meaningful and sustainable.


Grasping the Moment: Class, Race and the Crisis


Class and race were both at the heart of the two major political events that rocked the cosy consensus-politics of Western democracies this year: the Brexit vote in the UK and the election of Donald Trump as President of the United States. In the aftermath of both of these events fissures have opened amongst people on the broad left, trying to make sense of and respond to the current moment.

There is a broad, and clumsy, division between those who want to shoehorn the Brexit/Trump phenomena (and indeed the rise of right wing, racist movements throughout the West) into a neat, mechanical understanding of class; and those who insist on the absolute priority of race and racism as categories for understanding the contemporary crisis.

Neither of these approaches, as currently formulated, seem adequate to the historical moment we find ourselves in. Which means that in the midst of a profound crisis of the capitalist system, sections of the left appear to lack the capacity to meaningfully comprehend, explain and approach the current conjuncture.

The sharp division between those who emphasise class and those who emphasise race as the key optic through which to understand the present moment is nothing new. In the late 196o’s Fred Hampton noted how many people were uncomfortable with the Black Panthers for insisting on the centrality of class analysis, as Hampton put it:

You know a lot of people have hang-ups with the Party because the Party talks about a class struggle. And the people that have those hang-ups are opportunists, and cowards, and individualists and everything that’s anything but revolutionary. And they use these things as an excuse to justify and to alibi and to bonify their lack of participation in the real revolutionary struggle.

It may be that Hampton’s harsh words cannot, easily, be transposed to the current moment. But what is significant about them is that they reveal that the most important black liberation movement in the United States (after the Civil Rights movement, perhaps) had class and race at the centre of it’s analysis, and also had it’s detractors, even back then, who wanted to emphasise a disembodied, de-classed concept of race.

With the defeat of the Panthers, and some time later the collapse of the Soviet Union, the capitalist West entered a period of triumphalism. In a period where economic growth was fuelled by a succession of speculative bubbles, mass movements built around issues of class receded from the stage of history. In their place, contentious politics shifted to questions of identity: race, gender, sexual orientation and so on

This period saw a flowering of interesting and important theories about these various other vectors of oppression, which had, historically, been neglected (though not uniformly) by thinkers and organisations on the socialist left. This era also saw the mainstreaming of legislative interventions that explicitly outlawed discrimination on the basis of race, gender and other grounds (for example the Equality Act 2010 in the UK).

This era, loosely sketched, is the period we now file under “the era of neoliberalism”. We should be clear, that throughout this entire period the leading Western countries remained, at all times, structurally racist. People of colour consistently suffered diminished life chances, and were far more likely to find themselves at the coercive end of state violence. While the mainstream media continued to peddle and reproduce racialised narratives that copper-fastened wide-spread racism.

It’s interesting, that during this period the question of class (and even the idea of capitalism as such) disappeared from much public discourse. While awareness of and sensitivity to issues of race, gender, sexual orientation and so on proliferated in the formal, neoliberal discourse, questions of class were persistently elided. This, of course, is not surprising.

Class is the fundamental antagonism at the heart of the capitalist system, and as the neoliberal era was one of capitalist triumph, it should come as no surprise that it was also one in which discussion of the ghost at the banquet was forsworn. In this context class analysis, as such, was divorced from any meaningful, vibrant political movement, and as a result atrophied.

With the unfolding crisis of capitalism, since at least 2008, class tensions and class divisions have once again come to the fore, but they have not necessarily been understood as such. In a gambit to “regain some control”, or make their countries “great again” racist, right wing demagogues have sprung up throughout the world (particularly in the West) and mobilised racism, xenophobia and reaction to try to explain the current crisis.

The left has found itself toothless in the face of this rising tide of reaction. The centre, as represented in the UK by New Labour and the US by the Democrats, has ceded ground, made excuses for the racism and xenophobia stoked by the mainstream media, and cleared the way for the far more virulent forms of racism that Trump and others represent.

Following the shocks of Brexit and Trump, then, we have been left with moribund class analysis, and inadequate race analysis divorced form one another. With neither of them up to the task of comprehending the current conjuncture. The limitations of many, contemporary approaches to race are well captured by Adolph Reid Jr. who writes that:

The rise of neoliberalism in particular suggests a serious problem with arguments that represent race and class as dichotomous or alternative frameworks of political critique and action … [a] historical materialist perspective throws into relief a fundamental limitation of the “whiteness” notion that has been fashionable within the academic left for roughly two decades: it reifies whiteness as a transhistorical social category … whiteness discourse functions as a kind of moralistic exposé rather than a basis for strategic politics … The whiteness discourse overlaps other arguments that presume racism to be a sui generis form of injustice. Despite seeming provocative, these arguments do not go beyond the premises of the racial liberalism from which they commonly purport to dissent. They differ only in rhetorical flourish, not content … [they] reify racism by disconnecting it from the discrete historical circumstances and social structures in which it is embedded, and treating it as an autonomous force. Disconnection from political economy is also a crucial feature of postwar liberalism’s construction of racial inequality as prejudice or intolerance. Racism becomes an independent variable in a moralistic argument that is idealist intellectually and ultimately defeatist politically.

That is to say that in the era of neoliberal capitalism, questions of race were successfully divorced from questions of class in many mainstream discourses. The limits of class analysis is illustrated in simplistic claims that Brexit was a victory for the working class, or the simplistic equation of class with income bracket following the US election.

As a consequence, when confronted with the rise of mass movements that mobilise around questions of race, but are situated in a deeper, structural crisis of capitalism (that requires an understanding of class to make it intelligible) many people are left with little more than fear, and moralistic outrage. While the fear is completely understandable, particularly for people of colour (and more specifically migrant and working class people of colour, who are and will be the ones bearing the brunt of this racist onslaught), the outrage is no substitute for analysis.

We need an analysis now that can make the term “intersectionality” meaningful. Race is always situated within contexts of class, and class is always racialised. In the current moment we can, and must, insist that our political priority is uncompromising resistance to racism, xenophobia and solidarity with the people of colour who will feel the brunt of this rising tide of reaction. However, we must also insist that the racist character of these movements does not mean that a de-contextualised, de-classed race analysis must take priority in how we understand the current moment.

The analysis we need, of course, will not flower in  darkness. It is only through organising with one another, building movements and campaigns to resist racism in it’s various forms, and connecting that up to the broader need to fight against a system that necessarily produces barbarism in all it’s forms, that a clear, meaningful set of ideas will emerge to inform the struggles ahead.

Miller and The Politics of the Judiciary

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One of the most striking things in immediate reactions to the High Court judgment in Miller is that so many commentators are willing to acquiesce in the crucially important assertion made in the judgment that the case was simply concerned with ‘a purely legal matter’. In their recent intervention, Mark Elliott and Hayley Hooper, while disagreeing with and critiquing aspects of the judgment, accept unwaveringly that the ‘question for the court was solely a legal question about the extent of executive authority’. They further argue that to criticise the decision in Miller as undemocratic ‘is not only wrong, it is dangerous’.

In a similar vein, Nick Barber and Jeff King argue that the judgment in Miller was entirely agnostic regarding the greater political issues at play and was simply concerned with ‘which institution possessed the power’ to trigger the Brexit process. In light of the scandalous response to the judgment from certain media outlets (those with a long track record of vilifying migrants, welfare claimants and trade unionists) Barber and King argue that ‘the reaction to Miller presents a grave threat to our constitutional order, a threat both to the rule of law and to the very structure of democracy in the United Kingdom’.

What is noteworthy about this line of response is that legal scholars have responded to one of the most significant constitutional judgements of the last thirty years, by arguing that the judgment is entirely legal, divorced from the surrounding political context and immune from criticisms that question the democratic propriety of judges deciding on such matters.

In this brief intervention we aim to make two points: (i) the first is a reflection on what it means to adopt a critical stance vis-à-vis constitutional developments and judgements; and (ii) the second, building on the first point, is to demonstrate that there are valid, and longstanding, critiques of the sort of judicial decision making in the Miller case, and that we should not foreclose such avenues of critique.

The Pitfalls of Legalism

With respect to the first point, one need not stray into the arcane arts of continental deconstruction to find a basis for contesting the idea that the Miller judgment concerned ‘a pure legal matter’. There is a venerable tradition in UK public law scholarship—from Harold Laski to John Griffith—of seeking ‘a conscious and realistic jurisprudence’ which recognises the agency of judges, and the necessarily political nature of judicial decision making. As Laski argued, the vagueness in core legal doctrines often ‘tempts the judge to believe that he is simply finding the law when in fact he is really testing and rejecting other men’s views by the light of his own’.

Evidence of this temptation is seen in the assertion by both the court in Miller and numerous commentators that the case was a purely legal matter. That, to borrow Griffith’s phrase, portrays the judges as devoid of ‘political, economic and social’ concerns with ‘no interest in the world outside the court’ when it comes to making a decision. This stance, as Griffith long ago demonstrated, is unsustainable: given the very nature of their role judges ‘cannot avoid the making of political decisions’ when confronted with controversial cases’.

It may be unsurprising that given the massive backlash against the High Court’s Miller judgment, legal scholars would echo the judges in their insistence on the separation between law and politics. In the popular discourse — the judgment has nothing to do with law. In the legalist discourse — the ruling is merely a question of legal technicality and as such is not political. It is a simple operation of applying legal materials, via legal reasoning, on a legal question to determine ‘what the law says’. Thus, the legalist approach views disagreements with the court’s reasoning as ones of doctrine and hence as internal to law.

In our view, both the popular and legalist positions are untenable given the intertwinement of law and politics. The popular response denies the relevance of law and rights discourse to political struggles and to shaping people’s consciousness. In particular, the focus on constitutional questions and landmark cases leaves out the myriad ways in which the background legal conditions shape people’s choices, determines their life conditions, and sanction unjust distributive outcomes.

The legalist discourse merely obfuscates the essentially normative and political questions at the basis of the legal debate. While it may be understandable that the judges seek to deny their agency by claiming that “the law” dictates their position, there is no reason for critical scholars to accept this denial of agency. As one of us has written, the availability of competing and reasonable legal answers to the question before the Court showcases that it is far from being a ‘pure question of law’, as the Court asserted. Therefore, legal scholars should be more forthcoming about the normative and political commitments that shape how one view such cases and thinks such controversies should be resolved.

Democracy and the Courts

Clearly much of the popular discourse responding to the High Court judgment contained outrageous personal attacks on the judges, which we should all condemn. We find it, however, bewildering that legal scholars would deny the reasonableness of the anti-democratic charge against the judicial intervention. Elliot and Hooper, for instance, assert that this charge is both ‘wrong’ and ‘dangerous’. This assertion stands in the face of decades of elaborate discussions about the ‘counter-majoritarian difficulty’ and between political and legal constitutionalists. As has been argued elsewhere, the persistence and irresolvability of these debates illustrates that institutional debates about who gets the final decision-making power when people disagree (judges or majorities) are inseparable from political and normative commitments. They certainly cannot be resolved by the mere assertion that one conception of democracy is correct and the other is wrong. Scholars are free to agree with the conclusion or the effect of the ruling, but they should not cloak this normative endorsement with contestable conceptual definitions. By doing so, they simply reproduce the same questions but at a higher level of generality and abstraction.

Debates about prerogative, parliamentary sovereignty and justiciability are difficult questions precisely because they are not purely legal. Essentially, these are questions about delineating the boundary between law and politics. There is no objective and consensual criterion to delineate this boundary and police it that is external to politics. To assert, as Barber and King do, that the justiciability question is clear given the ‘legal character’ of the question is to engage in a circular reasoning in which the conclusion is already presupposed. The distinction between law and politics in which politics is a space for private interests and arbitrary will, whereas law is a space for rights that are devoid of politics does not withstand critical scrutiny. This specific question is motivated by a political disagreement and has political consequences of which the judges are well aware. The litigation is motivated by the disagreement of opponents of Brexit with the majoritarian choice and seeks to overturn it, or at least to hinder its implementation. This context cannot be dismissed, as Barber and King do, as simply an institutional question about who is empowered to trigger Article 50, rather than the ‘desirability’ of triggering it. To make this assertion is to seek to separate the political question from the institutional arrangements to resolve it.

Thus, we maintain that even supporters of the ruling (and opponents of Brexit) have to admit that the resolution of this political debate at the hands of few judges indeed raises democratic concerns about the exclusion of majorities. They are free to proceed to prefer judges over majorities but it is futile to conceal this choice by claiming that their conception of democracy is superior on compelling rational grounds. They need to make a choice and acknowledge the choice as such.

Beyond Legalism

The legalist posture misses the popular grievances at the base of Brexit. Regardless of its merits, the Brexit referendum expressed a disenchantment with the political establishment and a growing alienation from processes of representation. Surely, this is understandable in an electoral system of first-past-the-post system that eschews proportional representation. Surely, this is understandable, when scholars have demonstrated that western constitutional democracies are not really an indirect form of government by the people, but rather a detailed system of governance that avoids government by the people (see Bernard Manin’s The Principles of Representative Government). Surely, this is understandable when scholars have repeatedly shown that the political system in western democracies is gravely unjust because it privileges the wealthy few over the many and sanctions obscene levels of inequality. Surely, this is understandable when 72 per cent of the voters who voted in a referendum are told that it was merely “consultative” and has no binding ramifications.

The forgoing does not suggest that majoritarian decision-making is inherently substantively correct. But the same can be said about judicial decision-making. Thus, the point is to acknowledge that these are two different processes of arriving at decision-making and only one is participatory. Admittedly, referenda are a limited participatory instrument but it is more representative than the current electoral system and more representative than the judiciary. The referenda’s shortcomings should lead to thinking of ways how to increase participatory forms and make them more sustainable, rather than to abandon them.

Therefore, those who agree with the current ruling’s conclusion should simply argue that they subscribe to it on substantive grounds, rather than deny the non-participatory nature of the judiciary and the ruling. To claim that those who privilege the judicial perspective are also democrats, based on a definitional fiat, is to obscure the consequences of this choice. It seems legal scholars are seeking to have it both: to overturn majoritarian decisions-making and to claim that they are the true democrats.

Co-authored with Nimer Sultany and Originally Published on the UKCLA Blog.

Trump, Mair and The Gods That Failed


The election of Donald Trump as President of the United States, much like the Brexit vote in the UK earlier this year, has been greeted by mainstream commentators with a mixture of vapid incomprehension and shrill, moralistic denouncement. The emptiness of these responses reflect a central problem for liberals, centrists, so-called ‘leftists’ and others in advanced capitalist countries, namely that their gods have failed them. Capitalist development and competition, wedded to (and notionally tempered by) limited, representative democracy and consensus politics have all proven inadequate to the historical tasks before them.

The capitalist system is in profound crisis, dating from at least the 1970s, and as a consequence traditional models of acceptable politics are collapsing. This tendency has been well documented by Peter Mair in his book Ruling the Void. In this book Mair, through careful statistical analysis, shows that democracy in the West is being hollowed out by a twofold movement: wherein political elites withdraw from the people, and the people in turn withdraw from political elites.

This, in certain respects, is the necessary development of democracy under capitalism. It should not be forgotten that capitalism was only belatedly democratised, and that in the almost 600 year existence of the capitalist system, there has only been a brief period (of roughly 30 years) when broadly democratic politics existed alongside increased material well-being for a majority of people. Even then, this ‘golden age’ was confined to the advanced capitalist countries in the global North.

With the deepening crisis of the capitalist system, the reversion to form and gradual shift towards undemocratic and unresponsive political regimes advanced apace. In this context, Mair argued that

in terms of politics on the ground, the widening gap between rulers and ruled has facilitated the often strident populist challenge that is now a feature of many advanced European democracies … Each of these particular versions of the challenge to the political mainstream has its own nationally specific set of ideas, policies and interests, often revolving around shared expressions of xenophobia, racism and cultural defence, and usually emerging on the right wing of the political spectrum … But each is also marked by a common and often very explicit hostility to what is seen in the different countries as the national political class.

Mair goes on to argue that ‘because of the growing enfeeblement of party democracy, and the indifference towards party democracy that is being expressed on both sides of the political divide, we now find ourselves being offered as alternative scenarios either the populist or the ostensibly non-political expert’.

This last line from Mair is crucial. Because it captures in a nutshell the essence of the choice presented to the US people in this presidential election: a demagogue and charlatan, mobilising racism and xenophobia while claiming to speak for ‘ordinary’ people and stand with them against ‘the system’. Or Clinton, who while not being a non-political expert, amounted to much the same thing: the hand-picked, trusted agent of the status quo.

So while the mainstream media, political commentators and so on recognised Clinton as one of their own, and lauded her campaign every step of the way, they simply could not conceptualise Trump. They could not understand the appeal of Trump, because, in various ways, they inhabit, in a tangible way, a political, economic and cultural world in which Hilary Clinton as president and business as usual makes sense. They cannot understand the world of people so marginalised, alienated, and (in many cases) impoverished by a system, that they’d place their hopes in a charlatan like Trump.

Much like the Brexit victory (and the prominence it afforded Farage, his fellow travellers and their reactionary views), the Trump election shows, to borrow from Marx and Berman, how quickly all that seems solid can melt into air. The contemporary, structural crisis of capitalism is deep and profound, and the existing models of democratic politics, and liberal frames of reference (which presume that all crises can be resolved within the system) are, plainly, insufficient to the tasks of understanding the current moment, or pointing a way beyond it.

What is needed now, instead, is a serious re-foundation of, broadly, socialist ideas and political practices. Only political movements, married to innovative ideas, that offer a genuine alternative to the extant social order will stand a chance or resisting the rising tide of reaction evident across the world. As Samir Amin once put it, in the ‘absence of positive utopias the peoples of the world invariably react to their desperate circumstances by reviving other types of utopia’. Trump and others are able to present their racist, reactionary false safe-haven as the only genuine alternative to people alienated from a system in crisis, because the left (in all its forms) has so spectacularly failed to offer any meaningful alternative.

It is, therefore, no small tragedy that so many on the broad left have become, unwittingly, the true heirs of Margaret Thatcher. In myriad ways, they have internalised the mantra that there is no alternative to the existing system, and the most they can offer people is Clinton instead of Trump; an admittedly imperfect EU instead of Brexit; falling instead of landing. Rather than accept that this is the best we can hope for, it would appear that enough people are so alienated and marginalised from the status quo, that they have been seduced by con-men and cast their lot in with the only alternative on offer to them.

This mass apostasy has left mainstream commentators scratching their heads: rather than engage in any meaningful critical reflection, the rush to apportion blame takes over. It’s the fault of people who voted for Jill Stein, it’s the fault of Comey and the FBI, it’s angry, reactionary white people, who cannot be reasoned with. It’s everything and anything but the system itself, because the system just is. But this, of course, is the very crux of the matter: the system is coming apart at the seams, Trump offers a false alternative while the left seeks to patch it up, and then reacts with outrage and incomprehension when people are not grateful for their efforts at keeping things as they are.

The lesson that has to be drawn from the Trump victory, and from the rise in reaction right across the world, is that the old formulae are no longer sufficient. One of the key lessons in the rise of Fascism in the 1930s is that the left was insufficiently robust and radical in opposing the right, and offering people an alternative to the existing social order. As Florian Wilde put it

The task of socialists … has to go beyond simply defending the status quo against fascist encroachment. The repeated crises of capitalism are what drive people to such desperation that they will even listen to racists and fascists in the first place; thus socialists have the responsibility to develop and present a realistic alternative: namely a socialist alternative. This alternative must be positive and appear convincing; it must be grounded in solidarity, cooperation and class struggle and emphasise a democratic, socialist response to capitalist crisis … We should take the experience of the SPD before 1933 as a warning: a workers’ party that allows itself to become an administrator of the capitalist system by joining or supporting bourgeois governments—and thereby providing left wing cover to austerity—runs the danger of becoming identified with the system itself. It risks discrediting any claim to be an alternative to the status quo. In times of economic crisis like 1929 in Germany or today … millions begin to turn their backs on a status quo that no longer offers them a future. It is precisely then that a credible socialist alternative is needed to channel the anger of the masses in an emancipatory direction. The building of such an alternative is a task the importance of which must not be understated, particularly in the midst of the deepest economic crisis since 1929.

In The Junius Pamphlet, published one hundred years ago, Rosa Luxemburg argued that the choice for us was quite simple: socialism or barbarism. The intervening years have simply served to validate this stark contention. If the election of Trump appals you, if the rise of the right across Europe and elsewhere terrifies you, then you have to now realise that there is no salvation with the old gods of liberalism. Either you commit yourself to challenging the capitalist system root and branch, or you resign yourself to Trump, barbarism and whatever comes after.

Law and Politics

Contrary to Peter Pan, wishing hard enough does not make a thing true – and no matter how much some may wish it were so, law and politics cannot be separated. The recent High Court judgement (in the Miller case) provides a clear example of this. In the case the High Court held that for Brexit (UK withdrawal from the EU )to proceed, the Government would require the authorisation of Parliament, and could not trigger Article 50 of the Treaty on European Union (TEU) through the exercise of prerogative power.

Reaction to the judgement has been striking in two respects. On the one hand, right-wing media outlets have responded by condemning the individual judges involved in the case, in one instance going so far as to brand them ‘enemies of the people’. Such rhetoric is, of course, dangerous and reprehensible. But, it should be said, no less and no more so than when the same right wing outlets demonise migrants, welfare claimants, or trade unionists (as they routinely do).

Another line of responses to the judgement, mainly, but not exclusively, from people who oppose Brexit in principle, and have never  accepted the outcome of the referendum on the issue, has been to celebrate the decision as a triumph of law (good) over politics (bad). This is crystallised in an image (below) tweeted by the Financial Times, in which one of their readers celebrates the triumph of law over politics:


The sentiment expressed in this tweet, and elsewhere, echoes a central point that the judges in the case were at pains to make, namely that the case was a matter of law not politics.

As the judgement states, the judges considered it important to ’emphasise at the outset that the court in these proceedings is only dealing with a pure question of law’. The specific legal question being whether the ‘government can use the Crown’s prerogative powers to give notice of withdrawal’ from the EU without Parliamentary approval. The judges go on then to provide a rousing defence of an absolutist conception of the sovereignty of Parliament (the idea that, under the UK Constitution, only Parliament can make, change or unmake law), and in light of this conclude that the government must receive authorisation from Parliament before triggering Article 50 TEU.

The effect of this judgment is to disrupt the Government’s stated plan to proceed to trigger Article 50 by March next year- although a successful appeal to the Supreme Court will, in principle, allow the Government to see this through. In terms of the central constitutional issues decided in the case, responses have ranged from glowing endorsement (particularly from people opposed to Brexit), to a more nuanced take, which notes that the self-confident conclusions reached by the court are ‘highly contestable’.

Rather than entering into those debates here (safe to say that the observation that the court’s reasoning is contestable is putting it mildly), I want to focus on the central claim made by the judges in the case, and many who have lauded the judgment, that the case concerned a ‘pure question of law’ and was, therefore, not political.

In  a simple way, this is nonsense. The case was taken by individuals who oppose the UK’s withdrawal from the EU in the hope that a sufficient number of similarly disposed parliamentarians will, if the matter is put to them, reject the Brexit vote. In effect, the case, from the perspective of the applicants, is not about the abstract vindication of the dignity of Parliament, but is about trying to win the Brexit debate by other means. This much can be gleaned from the effusive reaction of Polly Toynbee and others, urging Parliament to now do its duty and scupper Brexit.

With respect to the judgment itself, we need to be very clear that a ‘pure question of law’ is a lot like a unicorn: everyone knows what it should look like, but nobody has every actually seen one. In deciding any case, judges must, whether they will it or not, engage in political/moral/normative assessments of the facts and legal material before them. Of course it is a central principle of legal formalism, and of liberal legalism, that law and politics can be separated one from the other, but the reality is quite different.

As Lawrence Friedman once put it, the ‘problem with “law” is that it cannot be unambiguously defined; it cannot be specifically marked off from the rest of the social world’. Likewise, judicial decisions can never be purely legal, but are always, in some broad sense political and ideological. The problem, of course, is that judges must make political and ideological judgements and choices in a discourse and practice which denies them any such freedom (for extensive exposition on this tension see Duncan Kennedy and others).

The central tenet of legal formalism and liberal legalism is that ‘the law is the law’ – rational, objective, clear; unlike the messy, subjective terrain of political debate. The law protects us (and our democracy) from ‘bad’ political judgements, but at the same time the law and legal decision-making remains agnostic as to the substance of decisions properly taken in the political realm.

The idea that the judges in the Miller case wanted to convey is that the outcome of the case is determined by the law, and not by their subjective preference as to how it should be decided. As a collection of short responses to the judgment show, this is false necessity in its purest form, as the case could just as easily have been decided the other way, and that, too, would be entirely consistent with UK constitutional law.

Looking at the judgment, what is striking is the absolute terms in which the court assert the sovereignty of Parliament, and make this the basis for their judgment. It is noteworthy, in this respect, that two of the three judges (Sales and Etherton) have in recent years written, extra-judicially, in support of the new human rights regime in the UK. A regime, which both acknowledge in these extra-judicial writings, re-frames the nature of parliamentary sovereignty and, in certain respects, limits it.

Now, it may be that limiting parliamentary sovereignty is good, and that increased protection of human rights and legalisation of the UK constitution (with an expanded role for the courts) is also desirable, but these are separate matters. The point here is that two of the judges that decided a case on the basis of a near absolute conception of parliamentary sovereignty, have also, in the recent past, expressed views that are at variance with such a strong defence of parliamentary sovereignty.

All of which is to say that in the Miller case, they could have, consistent with both UK constitutional law and practice, and their own previously expressed opinions, adopted a view of parliamentary sovereignty which was less exacting, and, in turn, could have decided the case in a different way. Instead, the judges made a choice, and opted for the stronger characterisation of parliamentary sovereignty, which has had the concrete political effect of disrupting the Brexit process, and may, if the hopes of anti-Brexit campaigners bear fruit, lead to Parliament scuppering (or at least fundamentally undermining) Brexit, as such.

What’s important to bear in mind here is that opposing Brexit is a legitimate political stance; and thinking that Parliament ought, as a matter of good democratic practice, have a say in triggering Article 50, or approving any final Brexit deal, is likewise a perfectly defensible position. What is unhelpful is to cast these political and ideological positions, as objective, ‘purely legal’ requirements.

There are, in the end, no purely legal matters. There are political and ideological matters resolved through legalistic discourse, but this shifting terrain does not alter the fundamentally political nature of such questions.

After the Referendum: What’s Left?


There is nothing to celebrate today. The vote by a small (but significant) majority of people in the UK to leave the EU is not a victory for working people, for migrants, for socialists or left activists of any stripe. It could have been: if Labour and the main trade unions had seized the moment and set out a strong, principled, anti-racist and anti-capitalist case for leaving the EU. They didn’t, and the moribund radical left was so fragmented and disorganised, that it’s interventions had little or no bearing on the debate. As a result charlatans such as Nigel Farage are able to portray themselves as champions of “ordinary people” standing up to the “elites and fat cats”.

Race and immigration were certainly important issues in this campaign, and the mainstream narratives (whether for Leave or Remain) were racist and xenophobic. But race wasn’t the only issue, and if we fail to recognise this from the outset then we will be unable to respond meaningfully to the altered political landscape. The distribution of votes indicates that the Leave position was strongest amongst working class communities, in particular white working class communities. It is an indictment of the British left, and a reflection of their historical failure, that such communities now look to UKIP and other such racists for solutions to the marginalisation, exclusion and powerlessness they feel.

In response to the outcome many people will, understandably, be angry and unsure about what steps to take next. In this context it’s crucial that we do not allow anger or fear cloud our judgement or assessment of the situation. It is not the case that in this referendum good was defeated by evil, love conquered by hate, or the white British working class revealed as inherently reactionary or racist. Millions of people who have, for decades now, suffered under the yoke of neoliberalism and feel (inconsistently) that the political establishment (including the EU) does not represent their interests, have rejected the status quo. And they were right to do so. In the context of the ongoing crises of capitalism, the EU has developed to become a substantial driver of suffering, whether of workers, migrants or refugees, and a structural barrier to meaningful political reform. Notwithstanding these fairly well established facts, the British left balked in the face of what they saw (rightly) as a campaign launched by racists, and that would be fought (by them) along racist and xenophobic lines.

As a consequence the British left split along four broad lines: (i) enthusiastic remainers (the Labour Party, TUC and others); (ii) “tactical” remainers (not fans of the EU, but convinced that a vote to leave now could only benefit the right and far right) (iii) leavers and (iv) abstainers. The embrace by the centre left of the remain position shows that they are fundamentally divorced from the lived experience of the working class communities that they were previously immersed in and served. In doing this the Labour party has likely further alienated marginalised working class communities who know full well that the EU is not on their side, and were subjected to the spectacle of a Corbyn-led Labour defending the indefensible, thereby identifying themselves as part of the “establishment” that Farage and others purport to oppose.

The tactical remainers argued that while the EU was, of course, undemocratic, racist, pro-business and anti-worker, voting to leave in the context of a Tory/UKIP led referendum campaign would, given the (often blithely assumed) “balance of forces” lead to a “lurch to the right” and a rise in racist and xenophobic attitudes and fascist politics. This position is understandable and defensible in certain respects, but it also reveals two crucial problems with the radical left in Britain. First, it demonstrates a clear divorce from the life and struggles of working class communities, and a consequent willingness to expect the worst (in terms of reactionary attitudes) from white working class communities.

Secondly, it is premised on a very partial take on the balance of forces. For while UKIP has certainly been on the rise in recent years, and anti-immigrant sentiment has been stoked by politicians and the media, the last few years have also seen increasing work place activism and militancy from doctors, teachers, train drivers, university lecturers and many more. Recent years have also seen the “Corbyn phenomenon” which, whatever it’s shortcomings, shows that there is an appetite amongst many British people for an alternative to Tory-driven austerity, and indeed in recent months a poll conducted by The Independent showed that a majority of British people have a stated preference for socialism over capitalism. All of which is to say that the political landscape, pre-referendum, was not entirely bleak. Add to this the fact that the reactionary, racist right is already firmly ensconced in the British mainstream, and the tactical assessment seems less persuasive. A similar set of criticisms could be levelled at the abstainers, with the added note that their idea that we should sit out fights which are not to our liking is a dangerously demobilising notion.

The key lesson that should be drawn from this referendum is that if we purport to be committed to the radical and fundamental transformation of our world, then we cannot achieve that by half measures. Furthermore, we should not imagine that there are neat divisions between arguments and positions of principle, and tactical considerations. It was the wrong tactical choice for the British left to subordinate principle to mistaken assessments of the objective conditions; the correct approach would have been to enter the debate with a clear, principled vision of an alternative to the racism and inequality of the EU and the capitalist system and seek to win working people over to this argument. If that challenge had been taken up, then today could have been the first important step towards fundamentally transforming politics in the UK and throughout Europe. We failed, and as a result handed the day to Farage and his ilk.

Going forward, it is crucial that the broad forces of the left come together and leave behind the acrimony of the referendum debate. It’s unfortunate that during the debate (and the medium of social media is part of the problem in this context) fear and empty moralism came to be seen as legitimate substitutes for engaged political debate. Our friends, family and co-workers who are migrants or people of colour had very good reason to be afraid during this campaign, given the rhetoric deployed (by both mainstream Leave and Remain camps and by the media), but even with that we still had to think about the correct tactical and strategic choices to combat the rise of the right, ceding ground to them was not the right choice.

In the days, weeks and months ahead we have to take the genuine, legitimate fear people felt and transform it into productive anger. We must stand resolutely with migrants, refugees and people of colour against racism, xenophobia and Islamophobia; but the left in Britain also has to look very hard at itself and find ways of reconnecting with and mobilising the working classes that have been left behind by the era of neoliberal capitalism. If we on the left fail to offer a progressive, transformative vision for the emancipation of the working class (and that is a working class as varied as the lived experiences of the millions of people that make it up) in the twenty-first century, then all of the darkest fears of reluctant and sincere remainers alike may well come to pass. If we don’t learn the right lessons from this referendum, and instead retreat into a frantic moralism, then we will be the authors of our own undoing.

Originally Published on Critical Legal Thinking.