Miller and The Politics of the Judiciary

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

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

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

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

The Pitfalls of Legalism

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

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

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

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

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

Democracy and the Courts

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

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

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

Beyond Legalism

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

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

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

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

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:

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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.

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.

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.