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.