Human Rights: Contesting The Displacement Thesis

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As a general rule, the precise significance of historical shifts, developments or movements can take a long time to reveal themselves. This is no doubt also true for human rights. For good or ill, and in many ways that remains to be seen, the language of human rights has become ubiquitous in moral, philosophical and political discourse over at least the last thirty years. Over this period we can point to instances where the language of human rights has been used to mobilise support for political prisoners, to prevent evictions of shack dwellers and to advance the cause of same sex marriage. By the same token, there are numerous episodes where the language of rights has been used to consolidate corporate power or legitimate imperialist interventions around the globe.

The grand question, then, of the value or otherwise of this rise in the language of rights remains open. On the terrain of this open question there are many sites of support and critique for the idea and language of rights, here I want to focus on one of the key critiques of rights and rights talk, what I will refer to as the “displacement thesis”. In a well-known essay on rights, Wendy Brown provides a sharp and useful articulation of the displacement thesis. She notes that human rights have come to be viewed, or presented, as ‘the progressive international justice project’, and then goes on to note that:

Human rights activism is a moral-political project and if it displaces, competes with, refuses, or rejects other political projects, including those also aimed at producing justice, then it is not merely a tactic but a particular form of political power carrying a particular image of justice, and it will behove us to inspect, evaluate and judge it as such.

Brown then goes on to argue that in light of the renewed vigour of American imperialism, perhaps instead of human rights support for indigenous movements in post-colonial societies, or other narratives, would be more efficacious in resisting the depredations of the global imperial order. She further argues that if one approach is to be favoured over the other, then we must recognise that it is difficult to engage in simultaneous emancipatory projects at once. Finally, Brown concludes by arguing that the language of human rights ‘is a politics and it organizes political space, often with the aim of monopolizing it’.

While Brown’s contention that the language of human rights is one among a number of different forms of political power is useful and incontrovertible, the displacement thesis she advances is problematic. It should be said that Brown is not the only one to advance this argument, and numerous critics of rights, from Morton Horowitz in the 1980s to Robin West in a recent intervention, have marshalled it in one way or another. However, Brown’s clear articulation of it provides a useful starting point to engage with an important issue in the debate about the role of rights, and of law more broadly, in movements for radical social change.

If we boil the displacement thesis down, what it amounts to is the assertion that in any given society or historical period, movements for radical emancipatory change can only make use of a singular discourse. That is to say that any individual or movement who is dissatisfied with the extant social and political environment they inhabit, can only respond to and critique it in one dialect. A further implication of this argument is that in the contemporary global dispensation the language of rights tends to crowd out, or indeed preclude, the use of other emancipatory discourses; such as claims for distributive justice, substantive equality or meaningful democracy.

Certainly the intense legalisation of rights over the last thirty years, and the concomitant formalisation and professionalisation of rights practice, lend some support to this argument and make it intuitively appealing. But the shortcomings of a particular strand of liberal legalism hardly provide the basis for the jettisoning of rights, as such, which this line of argument would entail. Notwithstanding its intuitive appeal, the displacement thesis is fundamentally flawed. It is flawed because the emancipatory monolingualism it presumes is not born out, either by historical experience or contemporary struggles for fundamental social change. If, indeed, insurgent movements were limited to a singular choice among contending discourses, then the rhetoric of the French Revolution would have pursued Liberty, Equality or Fraternity and not all three. The American Declaration of Independence would have limited itself to a self-evident truth, rather than a collection of them.

Similarly, if the displacement thesis held, contemporary movements such as Abahlali baseMjondolo in South Africa, the Movement of the Landless in Brazil or the World Social Forum, would have to eschew the language of rights in favor of a discourse of distributive justice, or enhanced democracy, or anti-imperialism. Instead, all of these movements manage to mobilise numerous, complimentary (and contradictory) discourses in pursuit of their strategic objectives. While certainly at any given time, depending on the prevailing conditions and the specific aims of the movement, one discourse or other might take precedence, these movements, as with many historical antecedents, nonetheless engage in an emancipatory multilingualism, which gives the lie to the displacement thesis.

All of this is not to say that the language of rights, particularly in its dominant rendering, is unproblematic. But to follow the displacement thesis to its conclusion would be to accept the abandonment or jettisoning of rights by movements for radical social change, in favor of another, presumably less problematic, emancipatory discourse. But this sort of strained maximalism is fundamentally problematic. Within a context of globalised capitalism, where neoliberalism is the hegemonic ideology, there is no discourse – be it democracy, justice, equality – that exists beyond or outside the system, and cannot be co-opted and manipulated to justify the extant order.

The problem with the displacement thesis is that it implies there is some silver bullet argument, a singular one that is superior to the language of rights. But, in struggling against the injustices we see around us and seeking to build a better future, we have no choice other than to work with the tools at our disposal, including rights. As Terry Eagleton puts it ‘A different future has to be the future of this particular present. And most of the present is made up of the past. We have nothing with which to fashion a future other than the few, inadequate tools we have inherited from history’. This, of course, includes rights.

None of this is meant as an apologia for rights, particularly for the dominant discourse and practice of human rights, but more modestly to point out that we should be slow to jettison rights on the basis that by utilising them we somehow prevent ourselves from engaging other languages of resistance and change. In a way this point is well caught by Audre Lorde, who once wrote that she could not ‘afford the luxury of fighting one form of oppression only’; not only does any emancipatory movement necessarily have to challenge different forms of substantive oppression and injustice, it has to do so by drawing on a wide array of tactics and emancipatory discourses, and embracing one does not preclude the adoption of another.

Originally Published on Critical Legal Thinking.

Interview About The Right2Water Movement in Ireland

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Following the imprisonment of five Right2Water protesters in Ireland last week, DtRtP talked to Paul O’Connell a Reader in Law at SOAS who has been active in the anti-water charges movement in Ireland and building solidarity here in London.

Can you tell us about the movement against water charges that has developed over the last year? We’d especially like to know about what the protests are against, it’s size and scale and how it has been going?

The movement is against the introduction of charges for domestic water use, and the installation of meters to facilitate this new charging scheme. The position in Ireland has been that domestic water is publicly provided and paid for out of general taxation; the current government, as part of a broad based policy of neoliberal austerity reforms, has set up a private, semi-state entity called Irish Water to implement the proposed new scheme. The protests in Ireland over the last 12-14 months have been against the introduction of water charges as a matter of principle, with the movement rallying around the slogan of the ‘Right2Water’, and the insistence that water is a public good that should be available to all and paid for out of general taxation.

Working class communities throughout Ireland have mobilised against the installation of water meters in their communities, in effect they have been peacefully obstructing the installation of these meters.

As a corollary to this, working class communities throughout Ireland have mobilised against the installation of water meters in their communities, in effect they have been peacefully obstructing the installation of these meters. The movement is unprecedented; the level of self-mobilisation and politicisation amongst working-class communities has simply never been seen before, and the movement has been a success. It has led to hundreds of local street meetings and protests, but crucially to a number of massive national demonstrations (with as many as 120,000 marching through Dublin on two occasions in late 2014). This, in turn, has led to concessions from the government, such as dramatically reducing the proposed charges and introducing other incentives. Despite this, the activists involved in the movement have committed themselves to the complete abolition of the charges, and so the struggle continues.

What has been the response of the state and the media to this mass movement?

The response of the state and the mainstream media has gone through a number of phases. At the outset it was one of incomprehension: Ireland has been the “good student” of the European austerity school for the last number of years, and while there were sporadic protests and oppositional groupings, there was no mass movement in Ireland against the tide of austerity. The emergence, then, of the anti-water charges movement caught the establishment, and indeed many on the left in Ireland, by surprise. The movement is led by community activists; people who have not historically been politically active, but who have now embraced this struggle.

The state now has become much more pro-active: late last year there was a dual strategy (which a pliant media acquiesced in) seeking to buy off part of the movement with concessions, while seeking to vilify the rest.

The state, at first, did not recognise the seriousness of the threat posed by the movement, and so was complacent. The Gardaí were heavy handed with peaceful protesters resisting water meter installations, mainly in Dublin North East, but there was no coherent strategy, and this gave the movement room to grow. Following the large scale mobilisations of late last year, the state now has become much more pro-active: late last year there was a dual strategy (which a pliant media acquiesced in) seeking to buy off part of the movement with concessions, while seeking to vilify the rest.

The protesters were characterised as “thugs”, “dissident republicans” (a useful political slur in the Irish context, akin to calling someone a Communist in the US), instead of being bought off or cowed by this approach, the protesters embraced the slogan “dissident” as a badge of honour for their opposition to the status quo in Ireland, and rejected the concessions offered by the government on the charges.

Can you tell us a little bit about the charges and sentencing acted out against demonstrators and the logic behind the state’s recent moves?

The most recent phase of the state response is one of repression and intimidation. The carrot has been tried and found wanting, so the stick is to be wielded. The Gardaí conducted very public, highly publicised dawn raids on the homes of a number of protesters, including a Socialist Party TD (MP) who had taken part in protests late last year, whilst others have been arrested for tampering with or removing installed meters (“meter fairies” as they are known). Alongside this, the High Court has recently committed five protesters to prison, one of whom is out of the country. They have been committed on the basis that they refuse to abide by an injunction that was granted to GMC Sierra (a company sub-contracted by Irish Water to install the water meters) requiring them to desist from obstructing the installation of water meters.

The High Court has recently committed five protesters to prison, on the basis that they refuse to abide by an injunction that was granted requiring them to desist from obstructing the installation of water meters.

The protesters have held to their conviction that what they are engaged in, is a legitimate peaceful protest, the High Court has acted on the pre-text of balancing competing rights (to protest and carry on one’s lawful business), but in effect has used the injunction to eviscerate any meaningful right to protest in this context. The four, Bernie, Damo, Derek and Ollie, are now detained in prison.

News from Ireland has often come out in dribs and drabs, making it difficult for activists here to get a good picture, so could you clear some things up. Is it true that some of the prisoners are on hunger strike and others have been put in 23 hour solitary confinement? How are they doing?

Some of them were confined for 23 hours in the first days, but that has ceased. Three of the prisoners, Damo, Derek, and Ollie, were on hunger strike, but they have ended this now, reserving the right to resume it if they see fit.

What has popular opinion towards the arrests and sentencing been like?
The general response has been one of dismay. People see the patent injustice in peaceful protesters being imprisoned, while corrupt and reckless bankers, civil servants and politicians carry on with impunity, so it has definitely struck a chord. The Irish establishment has taken a gamble with the latest round of arrests, with the committal of the five protesters, and the ramped up anti-protester rhetoric; they are hoping that they can intimidate enough people, and thereby weaken the movement. My sense is that this is a mistake on their part, and the increased authoritarianism in their response will in fact serve to galvanise the movement.

Where does the movement in Ireland go from here?

For anyone familiar with Irish politics this movement has been truly inspirational. For the first time since national independence, thousands of working-class people have been mobilising themselves around a clearly class defined issue, and that brought into question the entire political status quo. At first some greeted this movement as “anti-political”, indeed many of the protesters identified themselves as “non-political”; in truth, what these activists are and have been engaged in is an unvariegated omni-politics. They know in the marrow of their bones that there is something fundamentally wrong, the water charges are a clear symptom of this; they understand also that everything (government, police, courts, media, business, political parties and unions) is in some way implicated in the maintenance of this “something wrong”, but there is, at times, a lack of clarity in analysis, and organisational weaknesses. Both of these factors are being remedied, the unprecedented numbers of people that have been brought into this movement have, of necessity, had a crash political education, and structures, such as Communities Against Water Charges (CAWC), which seek to strengthen this working class self-organisation and leadership, are consolidating themselves

The movement has mobilised unprecedented numbers of working people, most for the first time in their lives, and is now moving into a new phase which focuses on an active, nationwide non-payment tactic.

There are problems ahead, maintaining momentum is always difficult, but the arrests and imprisonments may prove a shot in the arm in this regard. Certain parties that identify as left and who should be the natural allies of this movement have not really covered themselves in glory, and an over-emphasis on impending elections and “building an Irish Syriza” could distract energy from the educational and organisational work that still needs to be done, but the movement is still in a very strong position. It has mobilised unprecedented numbers of working people, most for the first time in their lives, and is now moving into a new phase which focuses on an active, nationwide non-payment tactic. The movement can continue to grow, and can defeat these charges, but its central values (not the distraction of elections), and the centrality of community groups in leading the movement need to be maintained going forward.

Yourself, along with several others have been involved in organizing solidarity with protesters in Ireland. How can activists here best deliver solidarity and in the same vein, is there anything coming up to attend, build for and tell others about? Are there any websites or the like, we can follow for more information?

There was a protest outside the Irish Embassy after the arrests earlier in February, but there has not been much so far this year. We did hold a good solidarity rally outside the embassy in December, but this question just reminds me that we need to do more. In terms of keeping in touch and up to date, people should follow the Facebook feeds of Communities Against Water Charges and Right2Water Ireland.

Relevant links to follow for further interest:
Right2Water Facebook Page
Communities Against Water Charges Facebook Page

Originally Published on Defend The Right To Protest.

Talk on TTIP and the Dictatorship of No Alternatives

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A public talk given in Dublin in 2014, discussing the threats that the proposed Transatlantic Trade and Investment Partnership (TTIP) poses to workers rights, public services and democracy. The talk also situates TTIP in the broader context of neoliberalism, new constitutionalism and the crisis of capitalism.

No Easy Victories

screen-shot-2016-11-05-at-12-24-32The campaign for the Right2Water in Ireland is rapidly growing in strength and confidence. Working class communities have been staging determined and inspiring protests to prevent the installation of water meters in their areas, the best of the trade union movement has mobilised to help support and coordinate these efforts at the national level and the Irish political left has rallied to the cause. In response to the growth of the movement, the Irish State has let loose its dogs of war. As a result of which recent days have witnessed heavy handed and provocative policing from An Garda Síochána, concentrated mainly in Edenmore, Donaghmede and Coolock.

Footage of Gardai man handling women and minors, and generally trying to intimidate and bully peaceful protestors has emerged. Many protestors have reacted to this with dismay, and believe that the Gardai are in breach of their “oath” because of the way in which they are trying to force through the installation of unwanted meters. This idea that the Gardai are acting abnormally ties into other quasi-legal arguments within the movement about the need for “consent” to be liable to pay the water charges and related matters.

As the movement grows in strength, it is important, also, that its energies be focused, so with that in mind it seems right to dispel some of the misconceptions about the role of the law, and the police, in the struggle for the right to water. The movement and campaign for the Right2Water is the most electrifying and significant development in Irish politics for some years, but in order for it to reach its full potential we should heed Amilcar Cabral’s advice that we ‘tell no lies. Expose lies whenever they are told. Mask no difficulties, mistakes, failures [and] Claim no easy victories’. By dispelling some of the appealing, but ultimately unhelpful, arguments swirling around the movement, it will be possible to move forward in a more determined, focused and effective manner.

One of the important points to dispel is the idea that Irish Water requires a residents consent in order for them to be liable for the water charges. This is not the case. It is true that in the ordinary course of things, when, for example, you want to subscribe to a particular TV or broadband provider, you would need to enter into a voluntary contract with them for it to be valid. However, Irish Water is not an ordinary company. It is a semi-state entity created specifically to install water meters and impose charges for water use on Irish citizens. The Irish government, imagining itself to be cute and mimicking practices elsewhere in the world, has opted to package a tax as a service charge, on the understanding that it would be less politically controversial.

What the Irish Water Service Act 2013 does, among other things, is transfer the ownership of the national water infrastructure to Irish Water, and grant them both a statutory right and duty to levy and collect charges from “consumers”. This means that, legally, you do not have to consent to the charges; they are being imposed upon you. In real terms this means that returning the Irish Water application packs with “no consent, no contract” or burning them, does not alter the legal position; you are still liable for the charges. With that said the symbolic and political importance of returning the packs, or burning them is immensely important. These charges will be defeated by a mass campaign of resistance and non-compliance, so rejecting the Irish Water packs is crucially important, but for political, not legal, reasons.

With respect to the role the Gardai are now playing in aggressively intimidating peaceful protestors, a few key points should be noted. First, under Section 16 of the Garda Síochána Act 2005, newly appointed members of An Garda Síochána make a solemn declaration that, among other things, they will ‘faithfully discharge the duties of a member of the Garda Síochána with fairness, integrity, regard for human rights, diligence and impartiality, upholding the Constitution and the laws and according equal respect to all people’. For some protestors this declaration, or oath, implies that the Gardai should respect and protect their right to protest, and not intimidate and bully peaceful protestors. In turn, this idea ties into a broader common sense that the role of the Gardai as guardians of the peace is to protect and serve ordinary citizens.

This is simply not the case. Even on a formal, legal basis, the Gardai could, and no doubt will, argue that they uphold their “oath” by upholding the will of the Oireachtas, and facilitating the implementation of the Water Act. They can also argue that they are protecting the right of the Irish Water contractors to go about their lawful business. But more importantly, it has to be understood that the Gardai, like the police in every country, are not there to serve and protect working people, but to contain and control them. If you want to see the real face of An Garda Síochána, look to the West of Ireland were they have been involved in a protracted campaign of intimidation and low-level terror against local residents opposed to the Corrib gas line. Invariably in Ireland, when push comes to shove and citizens seek to oppose government policy, they will be met with the Public Order Act and all of the other tools of low-level repression.

Irrespective, then, of any “oath”, the Gardai are performing the very role they are designed and accustomed to play. As a force they are are structurally unaccountable, as a result of this unaccountability they are quite comfortable and confident in their ability to make a mockery of citizens right to protest. Going forward, then, the movement for the Right2Water has to be absolutely clear that the Gardai are not neutral arbiters between competing sides to an argument, instead they are the bared teeth of a threatened Irish establishment. The very aggression and violence of the Garda operations in recent weeks are not evidence of their confidence and power, but of their fear and weakness. The Gardai know what their role in Irish society is, and will perform that role dutifully. As the movement grows in strength and confidence, the repressive response of the Gardai will grow proportionately and the movement has to be prepared to meet this with the same determination and dignity it has mustered so far.

When the people of Cochabamba, Bolivia succeeded – in spite of massive State violence and repression – in reversing the privatisation of their water supply, it wasn’t through appeals to specific legal rules, but through the determined and steadfast action of a movement mobilised around the idea that irrespective of what the law said, water was a right that they would not allow be treated as a commodity. In a similar vein, the people of Detroit in the US have recently had their hopes of a legal victory to protect the right to water dashed. However, this has not deterred them and they are moving forward with their movement for a human right to water on the basis of The Detroit Water Pledge of Resistance. This pledge commits the movement, and all its individual members, to ‘if necessary, to join others in my community, and engage in acts of dignified, peaceful civil disobedience that could result in my arrest in order to protect and uphold the human right to water in Detroit’.

The growing movement in Ireland should, at this juncture, take guidance from James Connolly, who correctly observed that

It should be remembered … that every movement for the improvement of the condition of the human race, every step forward in civilisation, has of necessity had to face the opposition of Law, and disturbed the stability of Order. The pioneer of progress has ever been an enemy of Law, and directed all his efforts to the destruction of Order.

Advancing the struggle for the Right2Water in Ireland and against the water charges cannot and should not rely on appeals to the law as it is, or to the conscience of individual Gardai. Appeals will not work, but demands can. When the campaign for the Right2Water succeeds, it will do so in spite of the law, not as a result of it. This movement will not only overturn the policy of commodifying the water service, but can genuinely precipitate a fundamental transformation of the Irish political landscape. For this reason it will be resisted and fought by the Irish establishment. The law will not provide the movement with a silver bullet, there will be no easy victory, but a determined and united movement, rallying around the central claim that water is a right and a public good, can prevail.

Originally Published on Irish Left Review.

Demanding the Future: The Right2Water and Another Ireland

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The American abolitionist Frederick Douglass once observed that if you find out ‘just what any people will quietly submit to … you have found out the exact measure of injustice and wrong which will be imposed upon them’ and that such injustices ‘will continue till they are resisted with either words or blows, or with both’. In Ireland, after six years of austerity and regressive tax reforms that have punished Irish working people for the benefit of Irish and European bond holders, it seems the Irish establishment may have finally discovered the measure of injustice that the people will not tolerate.

The Irish government is currently implementing a plan to install water meters, so that people’s domestic water usage can be monitored and they can be charged for the amount they use. In this way they are abandoning the traditional funding model for water provision in Ireland, which saw it paid for out of general taxation. This move by the Irish government is consistent with a global trend over the last twenty years towards the increased commodification of essential services, with water seen as a particularly lucrative market. Taking advantage of the economic crisis, as most governments in Europe have, the Irish government has accelerated a broad neoliberal policy drive (privatisation of services, cuts to public sector jobs, regressive taxes) under the well-worn mantra that “There Is No Alternative”.

However, this new tax – this commodification of an essential public good – is being met with trenchant resistance from working class communities throughout the island. From Crumlin to Togher, Edenmore to Caherdavin, communities have mobilised to prevent the installation of water meters in their areas. In these protests the community activists have remained resolute in the face of attempts at intimidation from both the company established to commodify the water service, Irish Water, and the police. As well as engaging in direct action to prevent the installation of meters, the bourgeoning movement is also encouraging a boycott of the attempts by Irish Water to enrol residents as “customers”, and calling for non-payment of any future bills.

At the heart of the mobilisations of this movement is the foundational claim that water is a human right. A coalition of community groups, civil society organisations, progressive trade unions and political parties has coalesced around the Right2Water campaign, and will hold a national demonstration in early October calling for the scrapping of the water charges.1 Water is, of course, a human right; recognised both in international law, and in certain domestic systems. But what the protestors opposing the installation of water meters, and the movement calling for the scrapping of water charges, are asserting is far more than a mere legal claim. The right to water, as a legal right, can be rendered in a way which is “market friendly”, as the residents of the Phiri Township in South Africa discovered, when their Constitutional Court held that a system of water metering (which dramatically reduced the amount of water poor and working homes could access) was compatible with their constitutional right to water.2

Rather than appealing to a specific legal provision, the Irish protesters, while using the language of the right to water, are making much more than a formal claim. In effect the assertion that water is a right – a public good that should be funded through general taxation, available to all on the basis of need, and protected from the vicissitudes and inequities of the market – is a rejection of the idea that there is no alternative to the commodification of essential services and resources. In a political context in which the drive towards commodification of essential services and the attendant transfer of wealth from working people to the obscenely rich (bolstered at the international level by agreements such as the TTIP currently being negotiated between the EU and US) is the common sense of political elites, the movement against water charges in Ireland is heretically proposing another vision.

By demanding access to water as a right, this movement rejects the foundational premises of the economic, political and ideological system that has held sway in Europe and most of the rest of the world for the last twenty years. To say that water is a human right, is to say that some things are so important that they cannot be surrendered to the market. It is an implicit claim that the profit motive is an insufficient driving force to meet peoples most basic needs, but that these can only be met through collective action and institutions founded on solidarity. The demand for the right to water today can, in a country where ghost estates exist side by side with spiralling homelessness, become the demand for a right to housing tomorrow, or the right to health care. None of these demands are pegged to or limited by narrow textual reference points; instead they are the crystallised, preliminary demands of what another Ireland might look like.

The movement against water charges arises at a portentous moment, with the centenary of the 1916 Rising – one of the key moments in the formation of the Irish nation – just around the corner the scramble for ownership of the legacy of 1916 has begun. Over the next year much and more will be said about this legacy, but in this debate those concerned about the threat of commodification, those resisting it on the streets, should insure that the discussion is not only, or even primarily, about the historical aspects of the Rising. Instead, the centenary of 1916 should be an occasion to envisage what the people want Ireland to become. The real significance of the Rising for those now resisting the asserted inexorable logic of the water charges is that the Rising shows how seemingly closed historical periods can burst open. Notwithstanding the historical whatifery of establishment hacks like John Bruton,3 it was the Rising that, in large part, transformed the crowds that cheered George V in 1911, into those who voted overwhelmingly for a separatist movement in 1918, and led to Irish independence.

What we should take from 1916 is that even in the bleakest of historical moments, there is always an alternative and the activists campaigning against water charges in Ireland have begun to articulate what that alternative might look like. By demanding water as a right this movement is setting its face against the logic of our time, and demanding an alternative future. Though still in its infancy, the rallying cry of the Right2Water implies that this future will be one founded on community, solidarity and equality. In this way the fight for the right to water in Ireland is a fight for an alternative future, and a victory for this movement can provide a catalyst for the building of this future, in Ireland and elsewhere.

Originally Published on Critical Legal Thinking.

Trouble In the Garden: Critical Legal Studies and the Crisis

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By modest reckoning 2012 is the fourth year since the Great Recession began. Over the last four years the victories won by socialist and trade unionist movements over the course of the nineteenth and twentieth centuries (universal health care, access to education, pensions and more) have been under constant attack. All as part of a systematic attempt to open up new avenues of accumulation for global capital and to weaken the working class, particularly in the ‘West’. The Occupy Movement, the Indignants and others have mounted stirring, if sporadic, protests in opposition to this rising tide of barbarism, but as of yet the ‘Left’ has not mounted a serious counter offensive. In effect, we are in the midst of an epochal struggle, and so far only one side has come out swinging.

Greece is being bled; Ireland, rarely the most rebellious of nations (in spite of national self image) has been rendered prostrate before the Gods of finance and European integration; throughout the rest of Europe privatisation, austerity and flexibility are being implemented with the net effect of undermining the living conditions and future prospects of the popular classes. In the United States ‘tent cities’ have remerged; and throughout the Global South the paltry advances made in the halcyon days of trickle down globalisation towards the realisation of the tragi-comic Millennium Development Goals have been completely undermined, as hundreds of millions of ‘un-people’ are tossed onto the scrap pile of superfluous humanity. Alongside all of this we see the emergence, or intensification, of new forms of authoritarianism; as police and military powers (the mailed fist that always accompanies the invisible hand of the market) are increased, and democracy and popular sovereignty are disregarded as just so many useless paper shields.

The law, of course, is fundamentally implicated in all of these developments. From national legislation passed to implement retrogressive policies, to increased police powers, judicial decisions informing people that they have all the rights they can possibly hold, but that they are no use now, up to the EU’s new ‘austerity treaty’. Into this maelstrom the foremost forum for critical engagement with the law, the Critical Legal Conference (CLC), has made its latest intervention. In 2012 the unifying theme and focus of the CLC’s annual gathering will be ‘Gardens of Justice’.

At this event radicals of various hues will be invited to explore:

a plurality of justice gardens that function together or that are at times at odds with each other. There are for instance well ordered French gardens, with meticulously trimmed plants and straight angles, but that also plays tricks on your perception. There are English gardens that simultaneously look natural – un-written – and well kept, inviting you to take a slow stroll or perhaps sit down and read a book. There are closed gardens, surrounded by fences, and with limited access for ordinary people. There are gardens organized around ruins, let’s call them Roman gardens, where you can get a sense of the historical past, but without feeling threatened by its strangeness. There are Japanese stone gardens made for meditation rather than movement. There are zoological gardens, where you can study all those animal species that do not have a proper sense of justice, no social contracts, no inequality and social injustice, and no legal systems. There is, indeed, the Jungle, a real or imaginary place outside the Gardens of Law.

This theme, as the organizers note, is quite open ended, and susceptible to numerous and varied interpretations. For example one could reflect on law and justice as ‘a place where symbolic orders and disorders become visible and may be acted out’ or indeed as ‘process and phantasy’, as ‘theatre and/or temple of justice’ or ‘as a therapy session’. Doubtless this broad theme, and the various possible interpretations, can and will give rise to any number of interesting talks, papers and debates.

Here, I want to offer just one interpretation of the call for papers setting out this theme, one which I think tells us something about the current state of critical legal scholarship (and perhaps critical scholarship more generally). Ultimately, the call for papers and theme of the 2012 CLC is an indictment of the critical legal project (movement seems a wholly inappropriate term at present). At a time at which global and national elites are engaged in an unprecedented assault on the living conditions and rights of working people, when democracy, even in its ‘low intensity’ form, is in retreat, the leading lights in critical legal inquiry are retreating into the gardens of their own imagination, and abandoning the less pristine, less genteel footpaths and public squares of politics.

If the ‘critical’ in critical legal means anything, it means connecting the ‘law in the books’ up to the concrete political and social forces that give rise to it; a complete rejection of the reification of ‘black-letterism’, and a focus on the ways in which the empty platitudes and mystifications of the law are complicit in the maintenance of an unjust and inhuman status quo. As Marx, in his critique of Hegel’s Philosophy of Right, argued the purpose of critique was to pluck the imaginary flowers from the chains of humanity, not so that the chains should be borne without relief, but that they should be seen for what they were, cast off and the real, living flower plucked. The ‘Gardens of Justice’ call may be an indication that rather than plucking imaginary flowers, the CLC is choking on the weeds of its own intellectual faddism and irrelevance.

At a crucial historic juncture, when the structural barbarism of neoliberal capitalism is being entrenched at the expense of hundreds of millions of people, the CLC has nothing to say. Or rather, its annual conference will be filled with people with a lot of interesting things to say, just none of it of relevance to the real world. The reemergence of tent cities in the United States brings to mind the question posed by Muley, a tenant farmer faced with eviction in Steinbeck’s Grapes of Wrath, when he asks: ‘who do we shoot?’ At a time at which the vast majority of the people in the world are being buffeted and tormented by social and economic forces that appear to be beyond their control or comprehension, the role of critical legal inquiry should be to make explicit the concrete causal forces, and to play a role in articulating alternatives. Instead, the CLC has retreated into a self-indulgent and irrelevant engagement with empty metaphors.

At the start of this century Perry Anderson, in a call to arms for the Left, bemoaned what he perceived to be a retreat into ‘standards of writing that would have left Marx or Morris speechless’ occasioned by increased academization on the left. And called for those on the Left to consciously re-connect their work, and the ways in which they communicate it, to the real struggles faced by people. The ‘Gardens of Justice’ call appears to have taken the CLC in a completely different direction. Rather than bringing the white heat of critique to bear on the current global conjuncture, they have sought refuge in the shade of imaginary gardens. In homage to the horticultural theme, the question for all of us going forward is whether we want to seek pleasant repose in pristine, imaginary gardens, or if we want to contribute to plucking the imaginary flowers that Marx worked so hard to uproot in his time. For me the essence of critique is found in the latter, and only blissful and sterile oblivion in the former.

Originally Published on Critical Legal Thinking.