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:

cwa8sxiw8ae0sju-jpg_large

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?

people-of-europe-rise-up

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.

Whose Europe, Theirs or Ours?

12801366_1032629800163509_118346669501268119_n

Wanderer, your footsteps are the road, and nothing more; wanderer, there is no road, the road is made by walking. – Antonio Machado

I. Introduction

The referendum on whether or not Britain should remain within the European Union (EU) is now fully underway. This debate confronts socialists with a series of pressing tactical and strategic challenges, the two key questions being: (i) should socialists intervene in this debate and (ii) if so, what position(s) should we advance. The position defended here is that, in all the circumstances, individuals and groups committed to the fundamental transformation of society have to come out strongly against Britain’s continued membership of the EU. We should do this on the basis of our commitments to democracy, genuine egalitarianism, solidarity and anti-racist internationalism. The Brexit debate provides an entry point for the bigger contest between defenders of a Europe in the service of capital, and the protagonists of a radically different Europe for the Twenty-First Century.

II. Dirtying Our Hands

It is undeniably true that issues of immigration have, so far, dominated the referendum debate in the UK, and that the dominant narratives are, for all intents and purposes, slight variations on shared xenophobic and racist themes. In this sense, then, the choice between voting to stay in with Cameron or leave with Johnson/Farage is an empty choice between competing strands of racism that many people are not willing to engage in any substantial way. There is, of course, a section of the left (centred around the Labour Party/Green Party and certain trade unions) that are also making the case to stay in the EU, on the basis that voting to leave would jeopardise various legal rights guaranteed to workers and migrants by the EU.

Given the constrained character of the debate so far, many socialists in Britain have adopted one, or a combination, of the following positions: this is a fight between different factions of the Tory party, and not something that socialists should expend energy and resources on; the debate is unmistakably and irredeemably framed in racist terms, therefore socialists should not get involved in arguing for one or other side of the racist coin; whatever its limitations, the EU has provided important legal protections for the rights of workers and migrants and we should not campaign or argue for a position that would lead to a loss of such rights; and in the event that Britain does leave the EU, we will be confronted by a triumphant and fundamentally unconstrained Tory government, which will accelerate its attacks on workers’ rights and on migrants and refugees.

Each of these arguments or reservations reflects legitimate concerns about the current political conjuncture in Britain, and Europe more broadly, but they are not sufficient arguments against socialist intervention in the debate. A concern for many on the left is that the Brexit campaign has been launched to appease the more reactionary wing of the Tory party; consequently, the dominant discourses on either side of the In/Out-Stay/Leave debate are irredeemably racist. As a result the entire debate on the issue has become toxic, and it is impossible for socialists to make a meaningful, principled, anti-racist and pro-migrant intervention into the debate, because the populist howling of the reactionaries on both sides will drown it out. The problem with this argument is that ultimately it is a counsel of despair, and invites a level of resignation that socialists simply cannot afford.

Reframed slightly, the argument runs as follows: the narrative is controlled by the reactionary forces of the establishment, and whatever the outcome it will be interpreted by them (and spun by their media) in a way which reinforces their narrative. This of course is true, but if we accept this as an invitation to sit out this particular fight, then we may as well hang up our gloves entirely. The simple reality is that in modern capitalist democracies, with the various complex means of producing and reproducing consent and control, establishment forces will invariably set the terms of almost every debate. The onus, then, is on us to intervene in spite of their rhetoric, their mystifications and their lies, and to set out principled, revolutionary arguments as to why, in the instant case, we should stay in or leave the EU.

Choosing, instead, to concede the terrain of battle before the fight has even begun is an abdication of our responsibility as individuals and organisations committed to the radical and fundamental transformation of society. In the midst of the biggest crisis in world capitalism since the 1930s, we cannot abandon working people to the demagoguery of the right. As recent election results in France, Germany and Slovakia (and the large numbers of people voting for UKIP in the last UK general elections) show, reactionary and racist right wing movements are benefiting from the dislocation and frustration that many people feel as a result of the crises of capitalism. If we take the high ground and refuse to engage in the Brexit debate because we see it as an inter-racist turf war, we also abandon working people at a time at which the intervention of socialists is most sorely needed. And if we fail to engage, this, in turn, does not weaken the right, but rather gives them a free run to spread their noxious easy answers. Daniel Singer offers an instructive and timely warning on this point in Their Millennium or Ours (94): ‘if frustrated people see no progressive solution and have no rational explanations for their fate, they opt for irrationality and the search for scapegoats’.

Refusing to engage in this debate because it has, so far, been dominated by reactionary and racist positions does not, in any way, undermine the reactionaries and racists; rather it allows them to operate freely, at a time at which they should be fought for every inch of ground on the ideological and political terrain. The plight of refugees in Calais and elsewhere in Europe, or migrants facing racism in the UK is not in anyway improved by socialists sitting this fight out; if anything, it will likely make their position worse. As Singer (276) warned, ‘politics abhors a void. If the left fails to provide rational, progressive solutions to the growing economic and social traumas, the extreme right will come up with reactionary and irrational ones, playing on the fears aroused by globalization and on prejudices reinforced by apprehension’. All we have is the conjuncture before us, and we have to enter the fray. We do not have the luxury of waiting for more propitious circumstances of our own choosing before acting to make our own history.

III. Politics Without Illusions

Whatever the arguments of the various segments of the right in the Brexit debate, what is crucial is that socialists advance their own principled arguments about the EU. The argument here is quite simple: the prospects for the radical, necessary changes to combat the crises of capitalism within Britain and Europe more broadly are dramatically inhibited by the existence of the EU. Therefore, we should seek a fundamental rupture with the institutions of the EU, so as to free up the potential to develop more radical politics grounded in genuine internationalism, not the truncated solidarity that the project of European capital offers. To make this intervention, we have to address three key arguments from those on the left who argue we should stay within the EU: (i) the EU guarantees numerous rights for workers, migrants and others that we should defend; (ii) whatever the shortcomings of the EU, Britain should remain a member state and socialists should fight within the existing structures to pursue ‘another Europe’; and (iii) even if we accept that leaving the EU might be necessary in the long run, now is not the right time because the right in Britain (and across Europe) is on the rise, while working people and the political left seem ill-prepared to resist them.

(i) Rights and Struggle

One of the central arguments for remaining within the EU is that membership of the EU has led to the development of substantial protection of workers rights, as well as the rights of consumers and the environment. This argument has been advanced in the current debate by, among others, the TUC and Jeremy Corbyn. A further element to this argument is that, as Corbyn says, ‘the Tories would use a vote to leave as the chance for a bonfire of rights in its aftermath’. There are three key responses to this line of argument. The first is that the rights protected by EU law are not the result of a gift from Jacques Delors and the benevolent institutions of ‘Social Europe’. Rather, the most important workers’ rights protected by the EU were won through the struggles of working people across Europe throughout the early- and mid-twentieth century. The legal structures of the EU, like all legal structures, reflect the crystallisation of particular struggles and conflicts, and the key workers, migrant and consumer rights protected by the EU were wrested from European capital by the collective action of working people.

This leads to a second, crucial point, which is that these formal legal guarantees were conceded at a point in time when European capitalism could afford to commit to such rights, and European workers were strong enough to demand such rights. The current conjuncture in Europe, in contrast, is one in which capital is on the offensive, and is necessarily seeking to break down all barriers to the pursuit of profit. In line with this, it is a period where the logic of neoliberalism has, since at least the mid-1980s, been encoded into the DNA of the EUs constitutional architecture. The last eight years of austerity have seen a dramatic acceleration in the undermining of workers’ rights and the living standards of working people. As Asbjørn Wahl notes:

In several EU countries—the Baltic states, Bulgaria, Greece, Ireland, Portugal, Romania, Spain, and Hungary—wages, working conditions, and pensions have been severely weakened. Pensions have been cut 15–20 percent in many countries, while wages in the public sector have been reduced from 5 percent in Spain to over 40 percent in the Baltic. In Greece, the number of public employees has already been reduced by more than 20 percent. And still more is demanded: in Spain only one in every ten vacant positions in the public sector is filled, one in every five in Italy, and one in every two in France. In Germany 10,000 public-sector jobs have already been cut, and in the United Kingdom it has been decided to cut close to half a million jobs, which in effect will involve about the same number of jobs in the private sector.

Such has been the assault on workers rights and living standards, that both the Council of Europe (separate from the EU, but with responsibility for monitoring human rights protection across Europe), and the European Parliament have published reports documenting how the policies of the EU have led to the dramatic erosion of the entire corpus of rights.

Coupled with these developments, the highest court in the EU, the European Court of Justice (even before the onset of the economic crisis) has issued a series of judgments, starting with the Viking and Laval cases, which dramatically undermine the right to strike, so as to protect the rights of companies. That these judgments pre-date the economic crisis is important. The accelerated assault on workers rights in the era of austerity is not an aberration, or a break with some mythical ‘social Europe’; rather it is the opportunistic intensification of tendencies inherent in the era of neoliberal capitalism. Neoliberalism is a response to the crises of capitalism. It is, first and foremost, a political project to reassert the interests of capital and capitalists worldwide. For this reason, the rights of workers were being systematically hollowed out prior to the US housing bubble bursting in 2008 and the assault on these rights has been facilitated, not restrained, by the institutions of the EU. This tendency can be seen further in the ongoing negotiations over the Transatlantic Trade and Investment Partnership (TTIP) between the EU and US, which will further weaken workers rights in the interests of capital. In short: given the trajectory of global capitalism, the EU is more likely to facilitate the undermining of fundamental rights, than act as a bulwark against their erosion.

This leads to a final point on this issue. The concern that leaving the EU would lead to an unrestrained Tory party engaging in a bonfire of rights is based on two flawed premises: the first is that formal legal guarantees effectively protect people from the vicissitudes of capitalism and the second is that the working class in Britain is unable or at least unlikely to mobilise to defend their rights. As to the first point, reference by proponents of the ‘remain’ side in the debate to the much-vaunted Working Time Directive (which is by no means unimportant) conveniently ignore the fact that British employees are allowed to negotiate with (read pressure”) their workers to opt out of the protections provided by this law, and thousands of workers do so annually. Furthermore, many British workers are faced, in the current crisis, not with being forced to work too many hours, but with having too few hours. A recent report shows that more than 800,000 British workers are on zero-hour contracts, with all the insecurity, working poverty and precarity that that brings. The existing legal regime is virtually silent on this matter. 

It is interesting to note that in New Zealand, such contracts have recently been outlawed, not as a result of some benevolent regional integration regime, but because of the sustained struggle of working class people there. In recent years in the UK, teachers, nurses, transport workers, junior doctors, migrants, refugees and their communities and supporters have come out in their tens thousands to assert and defend their rights. The loss of faith by some on the left in the capacity of the working class in Britain to fight to defend their rights, and the rights of migrants and refugees, ignores the history of struggle here, and the potential of ongoing struggles. Whatever the outcome of the referendum, the Tories and their ilk will continue to wage war on working people and migrants; the challenge is to be part of these struggles, and to trust in the capacity of people to fight to defend their interests, as the only real guarantee of the rights we have.

(ii) Reform or Revolution

It may well be that the rigid binaries of the early-twentieth century do not quite hold at the dawn of a new millennium, but there is, on the left, a sharp distinction between those who argue that we can and should remain within the EU to fight to make ‘another Europe possible’, and those who argue that commitment to socialist principles require us to break with the EU. The former position is represented well by the foundation of the Democracy in Europe Movement (DiEM25), which leads with the tagline that the ‘European Union will be democratise or it will disintegrate!’. Led by Yanis Varoufakis and others, DiEM25 argues, correctly, that the EU as constituted is fundamentally undemocratic, and that it needs a ‘surge of democracy’ to save it from a steady slide into disintegration. In the same way, many on the left in Britain argue that while the EU has its faults, we should nonetheless stay and fight to reform it from within. Another Europe, they argue, is possible, and the EU’s democratic shortcomings can be overcome piecemeal.

It is interesting, given events in Europe over the last five years that a former Greek Finance Minister should be to the fore in a movement that claims the EU can be salvaged through democratisation. If anything, the treatment of the Greek people at the hands of the Troika provides a signal lesson, if one were needed, of the inherent antagonism between democracy and the functioning of the EU. In 2015, having suffered under some of the worst (EU-sponsored) austerity policies of the last decade, it appeared as if the Greek people would vote in a Syriza government to reject the economic and social policy prescriptions of the Troika. In response to this, the President of the EU Commission, Jean-Claude Juncker, warned the Greek people that

To suggest that everything is going to change because there’s a new government in Athens is to mistake dreams for reality … There can be no democratic choice against the European treaties.

The fact that Juncker invoked the treaties on which the EU is founded in his contemptuous dismissal of democracy is instructive. Since at least the Maastricht Treaty, the EU’s constitutional arrangements have been revised to do two crucial things: (i) lock in the economic logic of neoliberalism and (ii) insulate the real decision making bodies with the EU from democratic control and accountability.

The most powerful actors within the EU, the European Commission and European Central Bank, are also the least accountable. This is not accidental, but the product of intentional choices to constitutionally lock-in the logic of neoliberalism to advance the interests of capital, and make it virtually impossible for the public at large to meaningfully impact on the decision-making processes at the heart of the EU. It is for this reason that mainstream law and political science journals are now replete with articles that characterise the EU project as an example of authoritarian statism or authoritarian liberalism. The contemptuous treatment of the Greek people in 2015 is just the most brutal, recent example of tendencies latent within the EU, and manifested in the discarding of the initial decisions of the Irish people on the Nice and Lisbon Treaties and of the French and Dutch people after they rejected the proposed constitution for Europe.

The EU is constitutionally undemocratic, and intentionally so. The calls to democratise the EU, though laudable, fundamentally misunderstand the character of the project. It is not the case that the dream of social Europe has been captured and derailed by evil technocrats in Brussels. Rather, the crises of capitalism necessitate a break for the ruling class with the post-War consensus in terms of social policy, and a rupture with the inhibiting limitations of democracy. These imperatives have been encoded into the constitutional architecture of the EU over the last twenty years. These constitutional arrangements constrain national governments that might wish to pursue some modest social democratic reforms (let alone institute radical social change); they make the functioning and operation of the leading EU institutions opaque and unaccountable; and, through the principle of unanimity enshrined in Article 48 of the Treaty on European Union, make it virtually impossible to revise (or democratise) these arrangements. The upshot of this is, as Wahl notes, is that ‘the possibility of changing any of the EU treaties in a progressive direction through ordinary political processes is virtually nonexistent. One right-wing government in one member state can prevent this’.

The recognition by DiEM25 and others that the EU is fundamentally undemocratic is correct, but the belief that it can be democratised, in any meaningful sense, is fundamentally mistaken. You cannot use a flame thrower to put out a fire: the EU has been transformed over the last 20 years to lock-in the victories of capital over workers, and to constitutionalise Margaret Thatcher’s idea that There Is No Alternative. On this point, Samir Amin cuts through all of the sophistry when he writes that ‘the European Union can be nothing else than what it is, and as such is unviable’. Another Europe may well be possible, but another EU is not. A Europe committed to democracy, solidarity, egalitarianism and genuine internationalism will only be brought about in spite of, not through, the EU.

(iii) Bringing the War Home

The final objection to deal with here is the idea that even if we accept that the EU is flawed, perhaps fundamentally so, voting to leave now would be a retreat into narrow nationalism at a time at which the right in Britain, and across Europe, is ascendant and there is little prospect of a coherent, left alternative to it. This whole argument turns on matters of faith: on the one hand it reflects a misplaced faith in the possibility and potential of transformative, transnational politics and on the other it represents a loss of faith in the capacity of working people, and of the political left, to genuinely transform the political and social landscape. The first sort of faith is reflected, again, in the DiEM25 initiative, which wants to build a ‘Europe of Peoples’ beyond the nation state, and has as one of its medium-term aims the convening of a Constitutional Assembly to develop ideas and institutions to govern the peoples of Europe. Such transnationalism, a form of liberal cosmopolitanism, counter-poses its own progressive character with the spectre of retreating into ‘the cocoons’ of narrow nationalism.

There are a number of problems with this argument. The first is that (notwithstanding the rhetoric of popular participation) it seeks, unwittingly perhaps, to substitute the top-down rule of one set of technocrats for another. The premise behind this line of argument is that the EU, as such, was positive and progressive to start with, until the bad, neoliberal technocrats captured it. It can be salvaged by the good, social democratic technocrats leading the peoples of Europe, from above, into the light of a more enlightened set of social and economic policies. This is ironic, yes, but also fundamentally problematic. It seeks to put the cart before the horse, and develop a Europe of peoples through the agency of a few prominent personages. Charismatic, top-down leadership geared towards salvaging the EU is not a break or rupture with the logic of neoliberalism capitalism, but a variation on it – and as such, will be riddled with the same shortcomings and contradictions.

The only alternative to the EU, with its neoliberal and fundamentally undemocratic character, is the self-organisation and mobilisation of working people in Europe (in all of their variety). Such a movement cannot be conjured up at the transnational level, but must begin at the local level. As Singer (210) succinctly put it, ‘the nation-state is still the ground on which the movement begins, power is seized, and the radical transformation of society is initiated’. Notwithstanding the delusions of post-nationalists (whether of the neoliberal or social democratic variety), movements for fundamental social change have to be built at the local level, and the nation state remains the basic unit of political action in this regard. In this respect, the EU, again, acts more as a restraint than an aid. As Wahl puts it, ‘the European Union itself creates a number of impediments, not only for economic and social development in Europe, but also for the social struggle’. Faith in the institutions of the EU and the possibilities of transnational politics to bring about the changes that are needed is misplaced. At present, the‘working class, the trade unions, and other popular forces are now facing a brutal power struggle, which was started from above’. This assault has been facilitated by the institutions of the EU. The fight back against it will, of necessity, be mounted at the domestic level (while also building and relying on internationalist solidarity) and in this context the need to rupture with the institutions of the EU will become increasingly apparent.

Finally, then, is the loss of faith in the capacity of the working class in Britain and of the political left to develop the sort of politics necessary to confront the rise of the right and the crises of capitalism. There is not space enough here to deal with every aspect of this issue, but it can be one of the positive up-shots of the Brexit debate if it forces socialists in Britain to face up to the organisational and political malaise which they now find themselves in. It is patently true that in Britain, and elsewhere around Europe, the working class and the political left are in bad shape, and the biggest crisis in capitalism since the 1930s has not, yet, produced a dramatic change in fortunes in this regard. It is understandable that such a vista could induce a degree of melancholy, resignation and defeatism amongst socialists, even while they continue to espouse the slogans they inherited from the Twentieth century. But the Brexit debate is an invitation to break with this malaise. In much the same way as the referendum about Scottish independence in 2014 became a thoroughgoing debate about what sort of Scotland, and what sort of future people wanted, the Brexit debate can provide a space in which socialists advance principled, revolutionary arguments about the nature of capitalism and the EU and invite working people to become the active protagonists in the construction of a different future. 

We can turn away in dismay at the number of votes that went to UKIP in the last general election, or we can focus on the fact that a recent study shows that a majority of people in Britain have recently said they prefer socialism to capitalism. Focus on the fact that crises in capitalism can open up space for political developments that seemed impossible not long before. The choice confronting us now is between two distinct approaches to politics. We can, as Samir Amin argues, approach the current conjuncture as opportunists, who understand politics as ‘the art of benefiting from the balance of power, such as it is’, or we approach it as principled socialists, for whom politics is ‘the art of transforming the balance of power’. In a similar vein, Marta Harnecker argues that ‘for revolutionaries politics is the art of making the impossible possible, not from some voluntarist urge to change things but because our efforts should be realistically focused on changing the current balance of power so that what appears to be impossible today becomes possible tomorrow’. Entering the fray and arguing, on principled, anti-racist lines, for Britain to exit the EU and seeking to clarify the real issues facing working people is the crucial role of socialists in this conjuncture. 

IV. Conclusions

If we could choose our own battles—or to paraphrase, choose the conditions in which we are called upon to make our own history—then many socialists would not put a debate about Britain’s continued membership of the EU top of their list. But that is the fight before us now. It may well be that this debate has its origins in Tory civil war politics, and that the mainstream debate will be dominated by racist, economistic and other misplaced narratives, but none of that absolves us of the responsibility to set out a principled socialist position on the debate. We can and must engage people and make clear that: (i) the EU now does as much to undermine peoples rights and living conditions as it does to protect them; (ii) the entire edifice is constitutionally and irredeemably undemocratic and neoliberal; and (iii) the thousands of dead men, women and children at the bottom of the Aegean and the despicable deal recently struck between the EU and Turkey are not an aberration, not a breach with mythical European values – instead they reflect Europe and the EU as it is. As such, we can and should break with the EU. If we do so there are no guarantees of what will come next: we do not get guarantees. But there are opportunities to imagine and fight for an entirely different Europe; that’s our challenge and we must prove ourselves worthy of it.

Originally Published on Critical Legal Thinking.

Human Rights: Contesting The Displacement Thesis

Screen Shot 2016-11-05 at 12.32.23.png

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

10122014-anti-water-charges-campaigns-protests-5-752x501

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

stop-ttip-generic-fb

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.