Political Economy for Radical Lawyers

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The latest issue of the London Review of International Law features an interesting review essay by Robert Howse, in which he makes the case for progressive international lawyers attending to the discipline of economics and the insights that can be gained from it, in particular from what he sees as more progressive economists. Howse’s essay focuses on three prominent neo-Keynesians (Thomas Piketty, Dani Rodrik and Joseph Stiglitz) who have been critical of the worst excesses of neoliberal globalisation. For Howse it is crucially important for progressive international lawyers to engage with the work of economists such as these, to counter the supposedly cast-iron arguments against regulation, re-distribution and so on.

Towards the end of the the essay Howse makes an interesting point, when he argues that for

progressive international economic law scholars, it could … seem tempting simply to reject or debunk economic orthodoxy as the thinly disguised ideology behind the global capitalist class. This might liberate us to make whatever arguments we like about the demands of justice, and to judge and confront the law and institutions on that basis. My own approach has been to learn whatever I can from economics (while at the same time maintaining a certain critical distance from the kinds of economics that morphs into orthodox policy prescriptions). Partly, this is from a sense of humility. While straightforward rejectionism might seem easy, understanding the world seems crucial for putting law and justice into practice and I admit I don’t have the intellectual tools to provide a comprehensive alternative to the methods and constructs of contemporary academic economics (which, of course, encompass game theory and cognitive psychology) in understanding the phenomena in question. And if there is some structural bias or fundamental orientation in contemporary economics that is intrinsically skewed towards neoliberalism or against a progressive agenda, I haven’t found it. The work of the three economists reviewed here suggests that, in fact, it may not exist.

This is a telling quote. Along with many other scholars, Howse is positing here an apparently hard-nosed realism. It’s easy, the argument goes, to dismiss and reject established ideas and practices, but if we want to change things in some meaningful way, we have to learn to understand and harness these established tools to serve our ends.

There are two key points to be made in response to this rendering: (i) there is nothing realistic or pragmatic about this argument and (ii) if the concern for lawyers, or anyone else, is with fundamentally altering the unjust structures of the world around us, then we need to go beyond mainstream economics, into the realm of political economy. This is an important distinction, for economics (in both it’s mainstream and slightly heterodox variations) takes capitalism and the capitalist system as its perennial and unalterable premise. In contrast political economy (done right) brings to the fore the transitory nature of the extant social and economic order, the power relations which constitute and sustain it, and, crucially, the possibilities for change inherent within it.

We can, and indeed should, start any inquiry in this field with Karl Marx. In his famous Preface to A Contribution to the Critique of Political Economy, Marx observed that from his studies he was

led … to the conclusion that legal relations as well as forms of state could neither be understood by themselves, nor explained by the so-called general progress of the human mind, but that they are rooted in the material conditions of life, which are summed up by Hegel after the fashion of the English and French of the eighteenth century under the name “civil society”; that the anatomy of that civil society is to be sought in political economy.

Thus, for Marx and later political economists, all of the relations of society (including legal) can not be comprehended on their own, but only in relation to one another and in this complex interrelation, the economic plays a pre-eminent role.

It is important to stress again that the political economy of Marx and others, is quite distinct from the economics of Stiglitz et al. and its scientific pretensions. The fundamental problem with this form of economics is, as Michael Perelman notes, that by taking the extant social and economic order as given, it devolves, ultimately, into a complex set of justifications and rationalisations of the status quo, and thereby obscures more than it reveals about the real economy.

If, as Howse argues, ‘understanding the world is crucial’ then mainstream economics only provides us with a distorted and partial understanding. The French radical Saint-Just once observed that those who make revolutions half way were digging their own graves. Less dramatically, we can say that those who follow their critical analysis only part way are digging the graves of whatever progressive projects they support. Hence Piketty follows his method of mainstream economics to the precipice (the realisation that capitalism necessarily and structurally produces inequality) but then shies away into naive and utopian policy proposals.

The ‘realism’ of mainstream economic thinking and scholarship does not open the way for practical, progressive solutions to the problems around us, but more times than not leads to intellectual dead ends and political quietism. In contrast, political economy can provide the basis for understanding and challenging the existing order in ways which are tangibly progressive and radical.

As such, anyone interested in understanding the nature of the contemporary capitalist order, and the possibilities for changing it, would do well to look up some of the following texts:

This list is, of course, partial and non-exhaustive. But for anyone concerned with radical change (in the sense of getting to the root of the problem), these studies and the broader discipline of political economy provide a far more valuable resource than the thin gruel of re-heated Keynesianism.

 

Brexit, Corbyn and Beyond

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Great historical events generally … concern whole social systems. The result is that to the typical modern mind they assume a catastrophic character, with all that this implies in the way of emotional shock and intellectual confusion. To the Marxist, on the other hand, the specific historical (i.e. transitory) character of capitalism is a major premise. It is by virtue of this fact that the Marxist is able, so to speak, to stand outside the system and criticize it as a whole.[1]

 

I. Introduction

Even though it is often derided and dismissed, the exuberant rhetoric of capitalist triumph and neoliberal ascendancy characteristic of the 1980s has seeped into the core of political theorising, and activism, particularly on the left. While mainstream thought and politics has always taken capitalism, as such, as its perennial premise; the seemingly relentless march of globalisation (with its privatisation, deregulation, and commodification of the entire life course) led many, whether consciously or not, to internalise Thatcher’s mantra that There Is No Alternative (TINA), or Fukuyama’s declaration that while there had been history, with the collapse of the Soviet Union it, now, had ended. Even the most significant crisis of world capitalism, albeit centred on North Atlantic capital, since the early Twentieth century led, for the most part, to a consolidation of neoliberalism and the class interests it supported, rather than any serious challenge to it.

Events of the last two years, however, have thrown the certainty of the status quo into the air, and ruffled, but by no means displaced, the complacency of the mainstream commentariat. The Brexit vote in the UK, the election of Donald Trump as president of the United States, and the rise of the genuine far right across the West, as well as other authoritarian formations around the world, have ushered in a period of panic, and tin pot prognoses: populism, Fascism, the “white working class” and sundry other terms have been wheeled out to try make sense of the seemingly incomprehensible. Briefly, here, I want to argue that the Marxist tradition (broad and wide as it is) provides us with the analytical tools to allow us both to understand the current conjuncture, and point the way to how we should orientate ourselves, strategically, to the challenges that confront us today. Using the Brexit vote in the UK as an entry point, it will be argued that our era of crises and dislocation calls upon us to fundamentally challenge the extant social order, and to develop ideas, organisations, and movements for transcending the archaic and barbaric social system which confounds us today.

 

II. A Way of Seeing

To understand Brexit, truly understand it, and related phenomena, we must move beyond appearances, and excavate essential causes. As Georg Lukács argued, it ‘may be the sacred duty of every genuine Marxist to face the facts squarely and without illusions, but for every genuine Marxist there is always a reality more real and therefore more important than isolated facts and tendencies – namely, the reality of the total process, the totality of social development’.[2] There are four key elements to Marxist analysis which help us grasp, not merely in retrospect, the the nature of the contemporary era and the challenges it poses: (i) the nature of capitalism as an historically contingent and crisis ridden system; (ii) the centrality of class antagonism to the production and reproduction of this system; (iii) a dialectical understanding of social processes, which has many elements to it but, following Lukács, has as its major premise the insight that ‘contradictions … are the basis and kernel of all events’;[3] (iv) the agency of working class people in transforming the world around them.

The absence of an orientation that foregrounds these insights leads to confusion, eclecticism and unhelpful analysis. Rather than understanding specific events and processes in their broader, historical, political and social context, specific surface factors are seized upon and made the basis for all encompassing explanations that do not actually explain much at all. The failure to understand capitalism as transitory and means that any purported “fixes” remain within the confines of the system that generates the problems in the first place; a failure to understand the centrality of the current crisis of capitalism, and the class dynamics and antagonisms which this has produced, means roots causes are never identified, much less addressed; and all of the foregoing means that working people, in all their richness and diversity, are never imagined to be the agents that can actively transform the failing order around us.

To counteract such tendencies, any analysis of the present moment has to be one that is sensitive to geographical and temporal specificities, but also one that foregrounds the issue of class and class analysis, that is ready and willing to challenge the entire edifice of the existing capitalist order, and that draws on the dialectical method inherited from Marx and others. As C.L.R. James has written

Today when all thinkers are groping like drunken men, with all their points of support and reference gone we have here a weapon [dialectical materialism] whose power and value was never so great as in the prevailing confusion.[4]

Rejecting the simplistic, superficial logic of cause and effect, and instead exploring the deep, contradictory relationships and potentials in any given context allows us to better grasp the situation before us, and to orientate ourselves in terms of concrete political responses and proposals. Of course, this is not some reified celebration of dialectical analysis, any such analysis must also be rooted in concrete struggles, and informed by history, context and nuance, to be really useful.

 

III. Brexit and Its Causes

It is undoubtedly true that the Brexit referendum was called by an arrogant Tory Party with a view to both appeasing and challenging the more right wing, Eurosceptic elements of the Party and its support base. It is also true that, as a consequence, much of the Brexit debate dealt with issues of immigration, and carried a specific racist character; this is true both of the dominant Leave campaign, and the dominant Remain campaign (it’s important to say this because it is often overlooked that the basis of the dominant Remain campaign was that the then Prime Minister, David Cameron, had gained from the EU specifically racist and xenophobic concessions around reducing immigration, rights of EU citizens in the UK etc.). One consequence of this framing is that many people on the left in the UK, including the Labour Party, argued against the Leave position, in large part, because it was seen as being solely a xenophobic vote, and contrary to commitments to internationalism and anti-racism.

Likewise, then, when a small majority (52%) of those that voted in the referendum chose to leave, this was seen as, primarily, a reactionary, racist vote by a disenfranchised, revanchist “white working class”. And certainly, in the period around the Brexit campaign and vote there was a spike in reported racist crimes and incidents (though the data indicates that such incidents have now returned to “normal” levels). The problem with this almost exclusive focus on the question of race/immigration, is that it failed to acknowledge the very real and legitimate criticisms of the EU as a set of institutions that lock in neoliberal economic and political logic and how this relates to a thirty-year process of deindustrialisation, disempowerment, and marginalisation rights across around Europe.[5]

It also failed to address the ways in which, in a period of severe crisis when working class people,[6] were looking for and open to some sort of an alternative, the EU (through its treatment of Ireland, Greece and other countries) constitutes a very real barrier to meaningful change. Indeed, it is noteworthy, in light of the recent election results in the UK (June 2017), that prior to Brexit a little reported survey revealed that a small majority of the British public said they preferred socialism to capitalism.[7] In spite of this, the die had been cast: the Brexit result was seen as a triumph of reaction, which would lead to the emergence of a veritable neoliberal caliphate ruled over by an ascendant Tory party with no hope in sight. Perhaps such pessimism is warranted, indeed the working class in the UK—and throughout the world—has witnessed far too many defeats over the last forty years. As the great historian of the English working class, E.P. Thompson, has noted, at times of ‘defeat and mass apathy’ it is common for a fatalistic quietism to become ascendant.[8] With that said, there were some who argued, prior to the referendum, that even though the debate had been launched by reactionaries on a xenophobic and racist premise, the nature of the crisis of capitalism and the legitimate critiques of the EU, meant that there was scope to use the debate to present working people with a radical alternative to the existing order, and begin working towards a genuinely transformative politics.[9] At the time such arguments were ignored, at best, or dismissed as Utopian.

 

IV. The Road Before Us

Less than a year after the Brexit referendum Jeremy Corbyn, the most derided and actively undermined leader of the UK Labour Party in living memory, lead his party into a General Election called by the buoyant and confident Prime Minister, Theresa May. In the Brexit debate Corbyn had, for some people, failed to make a sufficiently strong argument for Remain, and following the vote it was felt by many liberals and soft-left socialists that his acceptance of the referendum outcome was a failure and concession to reactionary nationalism. It was expected by all and sundry that the Labour Party would be wiped out by the Tories in this “Brexit Election”. Instead, under Corbyn’s leadership the Labour Party presented the people of the UK with a set of policies which, in the context of the last thirty years of capitalist development in Western Europe, were essentially radical, social democratic proposals around wages, workers’ rights, housing, health care, education and public transport. Against all expectations Labour increased their vote substantially, the single biggest increase in the Party’s vote since 1945, and dramatically undermined the authority and Parliamentary majority of the Conservative Party (who, at the time of writing, look to be reliant on a small, religious, reactionary party from Northern Ireland to keep them in government).

As with the Brexit result, the success of the Labour Party in the elections has caught both the mainstream commentariat (unsurprisingly) and many who place themselves on the political left by surprise. The centre is frantically scrambling around for soft explanations of the phenomenon; one line of thought wants it to be a “rise of the Remainers” moment, even though Corbyn has consistently said he will see through Britain’s exit from the EU, if elected, and the fact that only 8% of Labour voters said Brexit was a key issue for them; failing this, it was the unprecedented mobilisation of young voters that swung it, while this is certainly significant and important, it is only a surface factor, and sits uneasily with the obsession, less than six months ago, with the idea young people were more right wing and authoritarian than previous generations.[10] If there was any truth at all in the idea of “Millennials” being more right wing, then their increased turn out at the polls should have benefited the right at least as much as it benefited Labour, and this is simply not born out.

Again, these surface explanations, as with Brexit, are insufficient. It will take more time to unpack the results, and draw firmer conclusions, but what seems clear from the result is that the Labour vote increased (and decreased) across the demographics of age, gender, race and so on: but the one constant, which won’t show up in Lord Ashcroft surveys, is that Corbyn and Labour presented a manifesto which rejected the logic of neoliberal capitalism, and appealed to the material interests (better wages, social services and benefits) of working class people. Corbyn and his team saw in the current crisis of capitalism the potential, which has always been there, to build an alternative to the extant system. This potential was there at the time of Brexit, and is still there now. The challenge for the Left is the have the clear analysis, and concrete political conviction to support and nurture this potential into more concrete and sustainable alternatives, both within the electoral arena and beyond.

What’s important now is that the unwarranted pessimism around Brexit and leading into these recent elections does not turn into unwarranted optimism about what Corbyn has achieved. The reality remains that the Tories were a mere 75 votes (in 5 marginal constituencies) away from attaining a majority in Parliament; and that notwithstanding eight years of brutal austerity and reductions living standards, real wages etc. more than 14 million people voted for the most reactionary Tory party in a generation. While there is potential for progressive change and politics, there is equally the potential, and likelihood, of right wing consolidation and counter-offensive. In the face of this, the Left has to learn the lessons of the Brexit debate, insure that its analysis of contemporary capitalism and its crises, and the political positions it adopts in response to this analysis, are not overwhelmed and swayed by superficial analysis and liberal moralism, but instead are centred in an understanding of the fundamental contradictions of the capitalism system (class antagonism and its crisis/historically transient character) and utilise, in real terms, the weapons of dialectical analysis.

It will be useful to conclude this section by illustrating this potentially abstract point in a concrete manner. One of the concerns with those on the left who oppose Brexit, and also those in the wider European left (for example DiEM25) is that leaving the EU will necessitate a retreat into nation states, which will be a backward step and contrary to the principles of internationalism (a core value of any left worth the name). On its face, this is a plausible argument: if we apply formal logic, the EU is a transnational political formation, which, according to its own lights, is committed to internationalism, solidarity etc., therefore a move to the nation state as the principle site of political action is a step away from this progressive, international arena.

The problems with this argument, however, are twofold: first, the EU has only ever represented a truncated a narrow form of internationalism; and internationalism in the service of capital, and of no use to the drowning refugees in the Aegean, the Greek people caricatured, dehumanised and left to their own devices, or the African, Asian and Latin American countries further impoverished by trade agreements with the EU. As well as this, and crucially for our purposes, this analysis is also superficial, one sided and undialectical. It ensnares itself un unhelpful and static abstractions, without taking account of the concrete realities (of national sovereignty today, of the nature of the EU, of the opportunities that the contradictions of the current crisis present and so on).

Thankfully, not everyone is drawn in by the gravitational pull of such arguments. The Egyptian Marxist Samir Amin, commenting on the Brexit vote, makes a few crucial points. He notes, first, that the ‘framework defined by the (“nation”) state remains the one in which the decisive struggles that transform the world unfold’.[11] He notes further that the ‘European project is based on an absolute denial of democracy (understood as the exercise of choice between alternative social projects’.[12] Of crucial importance, and bringing the issue of agency back to the fore, Amin argues that

This crisis created opportunities for consistent advances, more or less bold, provided that the fighting movements adopt the strategies that aim at them.  The affirmation of national sovereignty then becomes obligatory to enable those advances that are necessarily uneven from one country to another but are always in conflict with the logic of ordo-liberalism.  The sovereign national project that is popular, social, and democratic proposed in this paper is designed with this in mind.  The concept of sovereignty implemented here is not that of bourgeois-capitalist sovereignty; it differs from it and for this reason must be qualified as popular sovereignty.[13]

The crucial point then, and one which the Brexit/Corbyn conjuncture feeds into, is that a radical, left struggle for popular sovereignty at the national level, which challenges the common sense (including its institutional manifestations) of the prevailing order can attract the support and commitment of working class people, and present a genuine bulwark to the rising barbarism of late capitalism in its stage of decline. As a final word, Amin concludes that for him ‘there is nothing to expect from the European project, which cannot be transformed from within’ instead, he argues, ‘we must deconstruct it to possibly rebuild it later on different foundations’. This then is the crucial point, in a context in which the truncated internationalism of the EU, the internationalism of capital bolstered by the class consciousness of the frequent flyer, now exists as a fetter on progressive change, the apparent return to the nation-state as the locus of political action and change, can represent a crucial advance for a substantive internationalism which challenges the logic of the extant order. In Europe today a fundamental rupture with the existing institutions of the EU is a necessary condition for the development of popular, democratic socialist movements and organisations at the national level, which, in turn, can and must build transnational networks of solidarity and mutual support, to re-found “another Europe”, beyond the horizon of capital’s logic.

 

V. Conclusion

What the Brexit vote, and the election success of Corbyn-led Labour show is that in the UK, as elsewhere, history is on the table once again. The crisis ridden social system we live under is an historically transient form of social organisation, there can be an alternative to it and the impoverishment it guarantees. The Scottish Marxist James Connolly once remarked that ‘Revolution is never practical – until the hour of the Revolution strikes. Then it alone is practical, and all the efforts of the conservatives and compromisers become the most futile and visionary of human imaginings’. While the results of the UK General Election are not revolutionary, nor, at this stage, epoch defining, the gains made by the Labour Party under Jeremy Corbyn’s leadership represent a welcome, and unexpected, victory for democratic socialism.

Corbyn’s supporters and voters are immensely enthused, and rightly so, but going forward such enthusiasm must also be tempered by rigorous analysis grounded in the best traditions of Marxism. This does not mean a lowering of expectations, but rather a more rigorous understanding of what is concretely possible, what challenges and limitations lie ahead, and an understanding that in the current conjuncture any movement for even modest, progressive change, has to be ready to fundamentally challenge the entire edifice of the existing social order.

 

NOTES:

[1] Paul Sweezy, The Theory of Capitalist Development (Dennis Dobson Ltd. 1946) 22.

[2] Georg Lukács, Lenin: A Study in the Unity of His Thought (New Left Books 1970) 18.

[3] ibid 55.

[4] C.L.R. James, ‘Education, Propaganda, Agitation’ in Glaberman (ed.), Marxism for Our Times: C. L. R. James on Revolutionary Organization (University Press of Mississippi 1999) 4, 33.

[5] For further elaboration of this argument see: Michael Calderbank and Paul O’Connell, ‘Confronting Brexit’ Red Pepper May/2017 (http://www.redpepper.org.uk/confronting-brexit/).

[6] There isn’t space here to fully unpack this, but the use of the concept of class by almost all commentators on the Brexit debate, drawing for the most part on advertising industry classifications, was paltry to say the least.

[7] See: https://yougov.co.uk/news/2016/02/23/british-people-view-socialism-more-favourably-capi/.

[8] E.P. Thompson, The Making of the English Working Class (Penguin 2013) 34.

[9] See: Jen Wilkinson and Paul O’Connell, ‘Who’s Europe, Theirs or Ours?’ Critical Legal Thinking 29 March 2016 (http://criticallegalthinking.com/2016/03/29/brexit-whose-europe/).

[10] See: https://www.independent.co.uk/news/uk/home-news/thatchers-children-blairs-babies-british-social-attitudes-more-authoritarian-right-wing-a7557351.html.

[11] Samir Amin, ‘Brexit and the EU Implosion: National Sovereignty — For What Purpose?’ MR Online 08 August 2016 (https://mronline.org/2016/08/08/amin080816-html/).

[12] ibid.

[13] ibid.

 

Finding True North

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In The Junius Pamphlet, Rosa Luxemburg wrote that the works of Karl Marx ‘gave to the working class of the whole world a compass by which to fix its tactics from hour to hour, in its journey toward the one unchanging goal’. So for Luxemburg and radicals of her generation, Marxism was not some ossified academic discourse, but rather a living instrument of action, analysis and revolution. Few wielded this instrument better than Lenin, who was central to the Russian Revolution of 1917, the centenary of which we mark this year.

But since the time of Luxemburg and Lenin, Marxism, revolutionary socialism and all associated trends have, for a variety of reasons, been in decline. Fast forward to the present conjuncture and confusion, miscalculation and despair are hallmarks of “the Left”, such as it is. Whether it be the Civil War in Syria, the Brexit debate, the leadership of Jeremy Corbyn, Trump, France and Le Pen, or any other pressing issue, very many on the Left find themselves rudderless. Striking out incoherently in various directions, while reaction is everywhere on the rise.

Concretely this has led to the appalling vista whereby people who consider themselves Left, “leftist”, socialist and, in some cases, revolutionary are arguing in defence of the racist, neoliberal EU; against the leadership of Corbyn in the UK Labour Party, for imperialist interventions in Syria and other sundry, reactionary positions. In this context there is a serious need to re-calibrate our coordinates, as it were.

To begin this process, we could do worse than revisit Georg Lukacs’ 1924 work Lenin: A Study on the Unity of His Thought. Various aspects of this work are rewarding, but in particular Lukács’ discussion of Revisionism in Chapter 4 is especially illuminating for our time. Revisionists, for Lukács, Luxemburg, Lenin and others, were those so called socialists and Marxists who had, in practice, abandoned the idea of revolutionary social change, in any meaningful sense. The sort of people, to borrow Patrick Bond’s phrase, who ‘talk left, and walk right’. For Lukács and others, interchangeable descriptors and pejoratives abounded for such people: revisionists, reformists, opportunists etc.

Lukács sets out five characteristics which reflect the ‘essence’ of revisionism, and can be summarised as follows:

i. The first is that revisionists abandon the centrality of class in their analysis of events and specific conjunctures;

ii. Secondly, revisionists abandon the Marxist dialectic. That is to say they embrace the simple, formal logic of mainstream political and cultural thought, and retreat from the central Marxist insight that ‘contradictions … are the basis and kernel of all events’;

iii. Thirdly, revisionist thought ‘always lacks historical, concrete and creative dimensions’, it is, instead, a-historical, abstract and pessimistically deterministic;

iv. Fourth, as a consequence of an a-historical, undialectical conception of society which has jettisoned the protagonistic role of social classes, revisionists come to ‘regard society as the reality which cannot essentially be changed just as much as the bourgeoisie. They no longer regard bourgeois society as historically created and therefore destined to historical decline. Nor do they regard knowledge as a means of recognizing this period of decline and of working for its acceleration, but – at best – as a means of improving the condition of the proletariat within bourgeois society. For Revisionism, all thought which points in a practical way beyond the horizons of bourgeois society is illusory and Utopian’;

v. Finally, as a result of the foregoing, revisionism is ‘tied to realpolitik. It always sacrifices the genuine interests of the class as a whole, the consistent representation of which is precisely what it calls Utopian, so as to represent the immediate interests of specific groups’.

Lukács then distils these characteristics further, and argues that the the common character of all revisionist or opportunist currents on the Left is that they ‘never regard events from the class standpoint of the proletariat and therefore fall victim to an unhistorical, undialectical, and eclectic realpolitik‘.

Having provided a useful descriptive account of revisionism/opportunism, Lukács then draws an immensely important political conclusion, he argues that:

opportunism is the class enemy of the proletariat within its own camp. The removal of opportunists from the labour movement is therefore the first, essential prerequisite of the successful start of the struggle against the bourgeoisie. It is therefore of paramount importance for the preparation of the proletarian revolution to free workers intellectually and organizationally from this ruinous influence.

For Lukács, then, confronting and challenging revisionist, opportunist and reformist tendencies within the broad Left is a political priority. A necessary step to allow us to clarify our understanding of a given conjuncture or political controversy.

Of course, as Luxemburg noted in Reform or Revolution, it ‘is obvious that revisionism does not wish to concede that its standpoint is that of the capitalist apologist’. So that many people and organisations will earnestly believe themselves to be radical, socialist or progressive, in other words to be ‘Left’, while they continue to walk right.

What is important for revolutionaries, and more importantly for the broad working class, is to be able to see through the fog and confusion that surrounds contemporary political events, and to begin to form analyses and concrete tactical positions that once again place radical transformation at the centre of politics. In this regard the compass of Marxism remains invaluable, but to develop our thinking and ideas along fruitful lines we should learn from Lukács.

We need to ensure that whatever issues or concrete controversies we face, our analysis is grounded in an understanding of the contemporary world, of capitalism, as historically contingent, riven with contradictions that impel change (one way or another), and founded, fundamentally, on the exploitation of the many (the working class, in all its diversity and richness) by the few (the capitalist class). With these simple co-ordinates as starting points, we can begin the search for the ideas, organisational forms and movements that will be necessary to build the sort of world we wish to see.

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.