Why dejuridification should be a left-wing demand

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How much law is too much? For many readers of the piece, this must seem a strange question to ask. Ever since the neo-liberal breakthrough in the 1970s, hasn’t it been the right who have argued for the dismantling of the state? Aren’t laws the product of popular struggle? Don’t we need them to regulate the market?

Yet, if we think about law, a very great deal of it relates not to market relationships but serves rather to coerce people in relation to one another and to the state. Expanding criminal and immigration law (as Labour did between 1997 and 2010 by over creating over 3,000 new offences, many of them duplicating old ones) has made no one safer or happier.

The law has two elements: a coercive part and a regulatory part. It is the latter that leftists of all stripes normally consider benign – employment law, housing law, welfare law – and it is that I will be focussing on here.

We risk forgetting that laws have just as often emerged to tame insurgent forces as they did to satisfy protesters’ demands. Take, for example, employment law. The modern Employment Tribunal system dates back to the Industrial Relations Act 1971, which gave industrial tribunals, as they were then called, the power to hear unfair dismissal claims.

The Act was introduced by the Conservatives, not Labour. It was not passed as a result of workers raising their demands in ever increased volume until the state was obliged to recognise them. Rather politicians sought to defeat a rising workers’ movement, and used the expansion of the law as ones of a package of measures all intended to weaken that cause.

Tribunals became a popular means to raise employee complaints since the alternative (strikes to prevent dismissals) seemed impossible after the defeat of the miners, and as a consequence of anti-union laws which introduced compulsory balloting, etc.

Workers chose tribunals on the calculation that other routes to protect their conditions had been closed. You could draw a graph of the collapse of strike days between 1980 and 1999, and alongside it the rise of the number of Employment Tribunal cases. The two lines intersect in 1989; afterwards individual employment claims predominate.

The Tribunal system delivers worse outcomes for workers than the old system in which unions had more power. Studies from the 1960s seemed that between a quarter and a third of all dismissed workers who were dismissed and appealed to their managers for re-engagement succeeded. Today, fewer than one in a thousand unfair dismissal claims results in an order for re-engagement. Stronger unions delivered better outcomes for workers than more law.

The growth of the tribunals also occurred at the same time as the dismantling of a social movement with all the consequences we all know in terms of decreased industrial employment, broken communities, and a weakened labour movement.

You could tell a similar story of housing law. One of the main Acts of Labour’s 1974-9 government was the Protection from Eviction Act 1977, which made it a criminal offence for almost all landlords to evict a tenant without first obtaining an order from a court (a “possession order”) requiring them to leave. Seen in isolation, the 1977 Act was a reformist piece of legislation, which continues to shape all housing law for the better. Its effects are to prevent landlords from forcing tenants to leave by turning off the electricity or the gas.

But that simple structure has become overwhelmed by a multiplicity of tenancy statues, mandatory grounds of possession and absolute defences to them, to the point where a large majority of tenants have no understanding of their rights at all. If they are given a letter asking them to leave, they have no idea whether they can stay.

One of the reasons neoliberals and populists have won elections is because millions of people intuitively grasp and accept that a weakened state might provide more opportunities for them personally. The problem with these ideologies is not that they promise to shrink the state, but that (from a perspective of substantial freedom) they choose the wrong elements to cut. And further, they repeatedly fail to deliver even the weakened state they promise. They produce more regulation, more laws and more bureaucracy.

If we are serious about democratising the relationships which are now governed by civil law, we need to grasp the reality that sometimes a better society is created not by ever more regulation, but by measures which make it easier for people to organise themselves, whether in trade unions or tenants’ unions or environmental groups, and giving those campaigns the power to organise and defeat the corporations which dominate our lives.

This is a summary of my latest book, Against the Law: Why Justice Requires Fewer Laws and a Smaller State, which was published by Repeater in July.

Liz Truss’s two weeks in the Socialist Worker Student Society

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A number of friends from university have been sharing their memories of Liz Truss, who was in the year after me at Oxford. This was a time of huge, almost weekly student protests, and those few figures who joined the Conservatives at the time – Iain Corby, Sheridan Westlake, were often the targets of derision.

But, of course, Truss wasn’t a Conservative then. She was a Liberal Democrat and elected to various roles as a representative of her party.

What I do remember is, in autumn 1993, before she had even formally joined the university, insinuating herself onto the mailing list of our student Socialist Worker Student Society.

I was the person who signed her up after a long conversation in University’s Examination Schools. Truss impressed on me that she was a socialist, from a comprehensive school, a regular attendee on CND protests (that part may have been true, her parents were left-wing) and keen not just to join but to get involved in the group, assuming we had any vacancies in a leading role.

I may well have expressed an interest in her offer: our Society had around 300 “members” on our mailing list, and a core of around half-a-dozen people who were expected to do all the work of booking speakers, editing our newsletter, etc.

I then met her again two weeks later, leafletting my own college St John’s for the Liberal Democrats. I pointed out that she’d lied to me about who she was. She, or perhaps one of her friends, said something awful and hackneyed about how she was a “radical,” just not my sort of radical.

What conclusions do I draw – was she just lying perhaps in order to spy on us?

I don’t think she was *simply* lying. The left-wing parents were genuine. Within days of my encounter with her, she was speaking at the Lib Dem conference and calling for the abolition of the monarchy.

What I did get to see in that short period was a yawning ambition, a complete carelessness about which side she was on or what she needed to tell people she believed. Oxford was a leftwing place then, our student society was on a roll then with high profile speakers (Foot, Eagleton…), regular meeting of over 100 students at a time, and Britain was plainly heading towards a Conservative election defeat. It wasn’t entirely daft to think that being around SWSS we could have boosted her career. Well, actually it was – we were among the most militantly anti-careerist folks anywhere in Oxford politics. She worked that out. And if we hadn’t struck her off our membership lists (which we did), she would no doubt have vacated herself.

Along with the dishonesty, the other thing that struck me was a profound mediocrity. I’ve had all sorts of Conservative opponents, and even friends, over the years – I’ve known right-wingers capable of saying something interesting or amusing, or even being in their own ways steadfast, principled, etc. Johnson’s successful career you could see a mile off. Stewart’s recent reinvention. Kwarteng was making his way through school and university politics not far behind, making friends along the way.

Not Truss, though. Soon after I spoke to her she was elected as her college rep on the student union council – as I was too. She was a yellow blur at the back of meetings which debated how to protect student mental health, what sort of examination system would break the public schools’ dominance of Oxford entrance, etc. I don’t recall her saying anything there, and certainly nothing of interest, in 2 years.

If the kids were united…

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Some thoughts on Michael Richmond and Alex Charnley, ‘Fractured: Race, Class, Gender and the Hatred of Identity Politics’ (published by Pluto next month)

As a former Pluto author, I was lucky enough to be sent an advance electronic copy of the book. Here are some thoughts, in the place of a review…

The subject of Richmond and Charnley’s book is the way in which identity politics has been used to advance conservative goals. The most obvious way in which that happens is through confrontation, as when an insurgent street movements emerges (for examples Black Lives Matter) and conservative politicians demand the arrest of its leaders, and portray the movement as a threat to “the people”. But it also happens through co-option. The book is being published, after all, as we near a Conservative leadership campaign in which the two main candidates are a black man and a white Comprehensive-school-educated woman.

The book’s recurring method is to begin with some of the most urgent political controversies of the time, including the idea that Britain or America are “white” countries, and that this is a virtuous state, embodied in our historic buildings, parks and statue; that the free speech of the majority is under attack by a new woke radicalism; that a moderate feminism which the state could accept had been placed by a new and illegitimate form of intersectional feminism which repeatedly supports the wrong kinds of women (black women, trans women), etc.

The authors challenge the conservative narrative of the present, argue for the rightness of a politics in which the demands of the oppressed are recognised. Then, in their signature move, they read back into history for precursors to the arguments of today, showing how the political radicals of the past in Britain and American responded to similar controversies.

The most interesting parts of the book are the historical sections, which include detailed treatments of William Wilberforce. Contrary to his conservative depiction as a Great Briton figure who single-handedly (but inexplicably) abolished British slavery, Richmond and Charnley show that he was at the extreme moderate edge of an international mass movement which began with the revolts of the slave themselves.

They respond to the conservative toleration of a limited, white, feminism, by pointing to the insights of the Combahee River Collective and then tracing those back to an emergent black feminism in the US in the 1860s and 1870s, showing the role played by the likes of Harriet Tubman (after whose successful anti-slave rider the CRC were named), Sojourner Truth, etc. They retell the stories of the Bryant and May matchgirl strikes and of the suffragettes as of cautionary episodes, showing the possibility that even a socialist feminism might become a device of middle-class pity or a means towards a renewed conservative imperialism.

Subsequent chapters apply a similar militant and intersectional approach towards such episodes as the first British anti-alien laws, the support of the main socialist groups and of the trade unions for them, and the resistance to antisemitism by Jewish radicals. An important section deals with the use of anti-Chinese racism in the late nineteenth century United States. (Had the authors only extended that discussion back to the British colonies of Australia and South Africa, they would no doubt have shown that all intellectual elements of today’s “Great Replacement” conspiracy theory were alive and well in Edwardian England). There are rich and detailed sections on race riots in Britain in 1919 and lynchings in post-war America.

What Richmond and Charnley are writing is a kind of historical sociology, with each of those two elements in balance, in which the battles fought by revolutionaries in the early socialist movement are revisited, and the people central to thsoe fights (Eleanor Marx, the SDF rank and file, Jewish and Chinese radicals, etc) are treated as our contemporaries.

Books which make that imaginative link between the recent past and the present are rare. Far more common is either pure sociology in which the historical figures are, as it were, minor characters. Our pure history which may be influenced by deep political sympathies, save that those require to be kept out of view. A list of all the writers who have tried to write such theoretically-informed socialist history in Britain over the last 40 years, it would be limited to: the final works written by EP Thompson, Christopher Hill and Brian Manning; some of the collections published by Stuart Hall’s Centre for Contemporary Cultural Studies in Birmingham; and Satnam Virdee’s Racism, Class and the Racialized Outsider. The fact that two relatively young authors (Richmond and Charnley are former editors of Occupied Times) are putting themselves beside such contemporaries shows a real ambition on their part.

Richmond and Charnley argue that division is a feature of radical history; there was never a good time, whether the 1970s, 1950s or 1890s, when heroic white male workers all agreed on acheiving socialism and black people or women or anyone else were willing to wait patiently for them. (And nor, presumably, if there had been such a time would it have been “good”). They argue that race, gender, etc are constitutive of lived experience and therefore of class. They speak of a kind of “Revolutionary Time,” in which movements of the oppressed are winning.

I don’t see their book as the “last word” in either history or politics (nor do the authors present it as that). We are in one of those moments of rapid historical change where new conflicts are emerging, with different balances of forces, and inside which the mass movements do not yet exist which can overcome the fractures of the author’s title. Until the breakthroughs start coming, any theory will be partial.

So rather than end by stating any disagreements with the authors, I’d rather conclude by posing a set of question to the readers – of which I do no doubt there will be many – who will devour Richmond and Charnley’s book, be excited by it, and feel a sense of liberation at the knowledge that there are others before them who faced similar antagonists.

First, if race and gender etc are, as they write, capable constituting class; how can they (or disability, sexuality, etc) constitute a reactionary reading of class, which informs conservative or far-right opinions? Or, to rephrase the question, is there anything at the level of society which makes working class or black or female conservatism recur?

Second, is there anything we can learn from those past generations who had to deal with phenomena such as Fabian eugenicists, veterans movements, etc? Which reactionary social movements can leftists ignore and which require to be fought without concession?

Third, previous generations in the past believed there was a simple, unique category of lived experience such that you could realistically expected most people who had shared it to draw socialist conclusions. Is there today any integrated analysis which enables us to say that one or another experience whether of oppression, exploitation, or anything else is likely to produce revolutionary conclusions? And, if so, what?

To say that I left Richmond and Charnley’s book without having clear answers to those questions is not a rebuke. No-one else has found answers to them either. They are, in any event some of the big political questions of our time. And it is to the authors’ great credit that they made this reader believe that those questions were capable of being answered.

There are some things worse even than decline

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Oswald Spengler’s The Decline of the West, published in two volumes in 1918 and 1923, was one of those books of ideas which seem to have been read by almost everyone in postwar Europe. Warning of the decline of Europe and of his native Germany, unless that country abandoned democracy for what Spengler termed “Caesarism”, a movement which he in the book’s second edition associated with Mussolini’s dictatorship in Italy, Spengler’s fans included unsurprisingly any number of fellow post-democrats from Heidegger to Mosley.

But the 100,000 or so sale of his book also took into to the hands of admiring philosophers (Wittgenstein) and mythologists (Joseph Campbell). Arriving from Trinidad in England in 1932, the novelist, political activist, and future historian of slave revolt and Caribbean cricket, CLR James immersed himself in two big books, Spengler’s The Decline, and Trotsky’s History of the Russian Revolution: “What Spengler did for me was to illustrate pattern and development in different types of society. it took me away from the individual and the battles with the kind of things that I have learned in conventional history.”

Of the 1932-3 (“Bodyline”) Ashes series, during which English bowlers sought to intimidate Australian bowlers into giving up their wickets through fast deliveries aimed at their bodies, James wrote that it was the ideas of Spengler taking a form on the sporting field: “it was the violence and ferocity of our age expressing itself in cricket”.

Style matters. Spengler’s history was rich in ideas. He believed that the story of humanity could be told through eight major civilisations, each lasting for a thousand years: Babylonian, Egyptian, Chinese, Indian, Mesoamerican, Classical, Arabian and European. Each had been characterised by cycles of emergence, youth, ageing and collapse. For each, decline took the form of the dominance of the cities over the countryside, and the accumulation of wealth, and popular calls for democracy. The last was, for Spengler, a particular insult. Why should the ordinary people, who were so obviously inferior, be permitted to rule?

Ben Lewis, a researcher at the University of Leeds, has written an intellectual biography of Spengler based on a close reading of The Decline, alongside Spengler’s other works from 1918-33, during which that former schoolteacher and wartime invalid became an intellectual luminary, was invited to speak throughout Europe, and sought to influence activists and political leaders at all points on Germany’s heterogeneous far-right.

A number of themes emerge from Lewis’s book. The first is that Germany was, like Europe and America today, a society in which tens of thousands of conservatives had abandoned democracy without necessarily having a clear alternative future in mind. People today know the end-point: fascism and Hitler. But the way to that destination was paved by countless others who were either not fascists or despised the Nazis.

Spengler advocated for what he called “Prussian socialism”, by which he appears to have meant that a Prussian King would rule Germany, a Prussian aristocracy dominate her army and her economy, and that everyone else would live in a situation of poverty, but equal poverty in relation to these rulers glorified by their traditions, and their embodiment of the past. Those politics brought him into conflict with Hitler’s forward-looking reactionaries.

So, in relation to the question which dominates the English-language discussion of Spengler (“Was her a fascist?”) the short and unrevealing answer is surely that No, he was not a fascist, rather the harbinger of the Nazis. He was a different kind of non-democrat.

Ben Lewis, whose previous studies have dealt with figures from the German-speaking left (Kautsky, Zetkin, the attempts by Bolsheviks and Mensheviks to address German Communists), is intrigued by Spengler’s serious attempts to win allies with the German SPD, especially in his first volume which was published in 1918, when it seemed that all of German society was turning to the left. Spengler read the socialist press and sought to win allies by playing up the constructive, patriotic role played by the socialists’ 1914 vote for war credits.

Like any number of writers down the ages, Spengler had the fantasy of converting his literary success into influence. He wanted a relationship with party leaders in which they would provide the numbers and he would sketch out the strategy. In 1923, that meant the reactionary right. After 1930, he had no choice but to relate to the Nazis.

Spengler’s best links were to two groups of people immediately besides the Nazi inner core. The first were Prussian generals, the likes of Kurt von Schleicher, the last Chancellor before Hitler. The second were Nazi dissidents, such as Gregor Strasser the recently dismissed former leader of the NSDAP party organisation in North Germany.

After 1933, Spengler met with Hitler. The meeting was a success, and Hitler promised the writer a second meeting. In print, Spengler argued that the party needed a second revolution to crush the organisation’s unruly plebeian mass base and restore its politics to what it should be, a party of militant conservatives. In the 1934 Night of the Long Knives, Hitler did indeed destroy the institutional basis for the party’s working-class members (the SA). However he also killed Schleicher and Strasser, Spengler’s closest remaining allies. For the remaining two years of his life, Spengler neither published any further books, nor made any further attempt to influence from behind the scenes. The second meeting with Hitler never took place.

Britain in 2022 is in something like our own Weimar moment, with many conservatives rapidly giving up on democracy, preferring the fantasy that somehow an all-wise autocratic ruler would be better placed to rule in the chaotic circumstances of our time, characterised as they are by war, disease, and the inability of the economic to deliver increased living standards in an age of climate breakdown. Before Niall Ferguson, Peter Hitchens, or Douglas Murray – and more successful than any of them – was Spengler. Our legal system is being retrofitted around the gamble that, this time around, you can make a transition away from democracy without causing mass suffering.

However the Spengler that emerges from Lewis’s closely-argued and persuasive book is in equal parts a mystic, a self-publicist, a keen-eyed critic of liberal humbug, a romantic and a fool, who in helping to persuade millions of people to choose the paths of blood and iron, protected nothing of the past he was trying to save.

Against the Law: published today

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I’m posting this on the day my new book is published. I thought it might help to explain who the book is for and why I wrote it.

The book advocates for a world without law.

When you first suggest that idea, it seems ridiculous. Of course we need laws, don’t we? And now, of all times, with governments taking away human rights, laughing at the idea of asylum for refugees, coming up with ever more draconian anti-protest laws – isn’t this exactly the moment to be standing up for people’s rights?

For those who want to focus on the present, don’t worry, the book does a lot of that. I write in the book (as I’ve been doing in the press for the past few weeks) about the authoritarian side of populism and the benign laws it smashes, as well as the malign ones it creates.

What I try to show in my book is that, in the conditions of the past 40 years, we have come to rely on the law at just the same time that we’ve felt less power in our lives. In the workplace, for example, a structure of individualised employment law took root at the same time as the passing of anti-union laws. Workers were prevented from striking, and workers were rewarded for bringing their complaints in the tribunal. This two-step dance did not make workplaces better or reduce managerial power. In the 1960s, when unions were strong and laws were weak, employees who were dismissed would often appeal that decision to their managers. Around one in four employees who were dismissed was able to get that decision reversed. Move on a generation and under our present-day system of employment tribunals fewer than 1 in 1000 unfair dismissal claims leads to a worker’s reinstatement.  

If you have been a union rep then you will know how casework has drained activist time, and reinforced dynamics of self-policing within the unions. In talking in employment law, I don’t mean to extract it from other areas of law: the same processes of complexity and legal overreach have been going on housing law, family law, etc etc.

The most exciting of left-wing traditions imagine a world in which there is no state because the unequal relationships which a state seeks to mediate and protect have themselves gone away – in which there are no discrimination laws because there is no racism and no sexism. Or, in relation to the destruction of the environment, there is no bureaucracy of business regulations, because there is no longer “business” in the sense we understand it now, as a series of wealthy individuals hoarding resources for the sake of their descendants to the 50th generation into the future, with a complex regime of laws protecting them from being sued when those plutocrats take decisions which burn the forests and poison the seas.

If you can hold in mind that vision of the future, even as you look with open eyes at the world around us, then slogans such as “Save the Human Rights Act,” or “Defend judicial review,” can no longer be sufficient. Merely to save what we have now, you need to think beyond it.

They might involve certain expansions to the state: environmental courts to expropriate the polluters. But what I’m arguing for is, in general, the increasing power of social movements outside the law.

Faced with the crisis around us, I insist on optimism. It is in moments when you can see structures of law being dismantled, and they cease to seem permanent, fixed and unchanging, that you can start to imagine a different kind of legal system, one that corresponds to what people really need.

Against the Law is published by Repeater today.

I blame the school

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It’s only in Johnson’s final hours that the nice people whose comment pieces dominate the Guardian (let alone the Times, or the Telegraph) have noticed that he is the same serial liar and thief that he was when he first came to public attention, for offering to help an old school friend crack the ribs of a journalist. Who would have guessed that all those columns insisting that the public should vote for anyone except Jeremy Corbyn would have left us with the Prime Minister tied to the mast of our own latter-day Raft of the Medusa. Who, indeed?

Here, though, I want to focus on Johnson’s education – his Eton education – and ask what he picked up at that school, home as it has been to 20 of our prime ministers, and two of the last three. After all, the parents spend their small fortune on fees and expenses, c£20,000 p/a in the first years when I was there in 1986-1991, and around four times as much these days. What they’re paying for is a training. So what exactly are the boys taught?

Let’s begin in October 2019, and a letter read out by Rory Stewart. Two months earlier, Johnson had won the Conservative leadership contest, making himself prime minister, and defeating rivals including Stewart. The latter’s days in politics were running out; as leader of the party Johnson was able to deselect him as a Conservative MP. Before he left the stage, Stewart gave one last effort at embarrassing Johnson by reading out a letter sent home to Johnson’s parents by his housemaster in his final year:

“Boris sometimes seems affronted when criticised for what amounts to a gross failure of responsibility (and surprised at the same time that he was not appointed Captain of the School for next half): I think he honestly believes that it is churlish of us not to regard him as an exception, one who should be free of the network of obligation which binds everyone else.”

Stewart felt confident his audience would see the point for themselves; Johnson was a bad sort, indifferent to the rules which bound those in authority. As he had behaved when he was a prefect, so he would as Prime Minister.

You will further note that in this self-description, Eton College (as expressed by the teacher, the custodian of its values) is supposedly against Johnson. He isn’t the type that the school is seeking to produce. What then is the ideal Etonian, to which Johnson is the shadow?

Seen from its champions’ perspective, the ideal which Eton absorbs is the English upper-class ideal of the gentleman amateur. The school tells new pupils that they should aspire to be intelligent, hard-working and self-disciplined and that they should be incredibly ambitions. Crucially, they should be capable of concealing the public show of that ambition so that if they do arrive in power this will seem to be at just the same time both the most natural thing in the world (reflecting their innate talent) and the most extraordinary surprise, so that the recipient of power will be unassuming and modest.

Eton doesn’t just absorb that ideal passively, it is one of the institutions which teaches and spreads it, so that it becomes the norm for all our systems of government. Why, for example, are the education ministers never teachers? It is because of the same, destructive culture going back to the days of the British empire of the senior civil whose deep ignorance of the fields they administer is supposedly the guarantee of their objectivity.

Reflect on this ideal mixture of gravitas and humility and compare it to the most prominent Old Etonians you have seen: Boris Johnson and David Cameron. Were either of them this combination of talented, ambitious and modest? Ambitious, they were, but not one iota of the rest.

The fallacy is that you can teach people at the same time to be both privileged and gracious. When it is the very experience of knowing that the way is being eased for you which drives away the humility.

Beneath all of this, there are certain other myths which are equally ridiculous. There are around 750,000 people aged 18 in Britain at any time. Just 250 of them, or one in every 3,000, are pupils at Eton College. Saying that of those 250 boys, probably 1-2 in every year will end at some point in the Cabinet – means that 1 in every 3,000 people hoards the chance to make the decisions and 2,999 out of 3,000 are excluded.

The chief qualification for getting into Eton is that your parents are capable of paying for you to stay there. These days it’s equivalent to a one-off payment of around £400,000. Saying that people should get fast-tracked to these life opportunities just because they are rich is as obscene as saying that someone should be a poet because their parents were; or that purely on account of their wealth they should be made King or Queen and lord it over all of us.

Eton College is not a difficult school to get into. Many of its pupils are products of schools for those aged 7-12 which are little more than exam factories. It produces very few people who are both humble and talented. What it does produce, in vast number, is people who have been told since an early age that they will end up in positions of power. And because that’s what will happen, so it must reflect some virtue in them. In other words it teaches people to be like David Cameron (shallow and privileged) and it takes people to be like Boris Johnson (shallow and privileged and desperately vain).

I was at Eton in the same cohort as Rory Stewart, and in every class there was half a dozen David Cameron, and in every class there were 2-3 Boris Johnsons. Not Johnson himself, not exactly. He was something like 8-9 years older than me (as there are only 5 years of pupils at Eton at any on time), and we didn’t so much as overlap. And yet he was a constant presence: there in the autumn half-terms, joking with the younger boys at the summer Fourth of June parties. Even after his formal schooling had ended, he kept on coming back year after year, as if he knew he had left something behind there, something that he would never get back – whether the mirage of talent, a route towards advancement, or the availabilty of contacts. He needed the school, he idolised it, long after he’d left.

As for me, in my five years, I tried everything I could to tear the place down, brick by brick, like Samson’s temple. One day, I like to think I’ll go back – or someone like me – but this time, there will be whole crowds waiting, and hammers at the ready. So long as it stands, we’ll never have a true democracy.

Should he stay? For the moment, he should…

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Three weeks ago, I wanted Boris Johnson to lose his no-confidence vote. I was dizzy with the thought that the awful, stuck, unmoving barrier of our political system might yet buckle, and through it our frustrated hopes might yet burst like the glorious phantom of Shelley’s poem “to illumine our tempestuous day.” Now however that Johnson was won that vote, and seeing what happened on Friday, I hope he stays. I hope his will-to-power becomes his own torment. I know what happens to Prime Minister once they have outlived their moment of popular support. They cling. They destroy their own legacy.

Thatcher won 55% of the vote in the first ballot of a leadership contest in 1990, she did not make it to the second round. Theresa May won her non confidence vote in December 2018 by 200 votes to 117, she resigned 6 months later. Tony Blair called the 2005 election promising to quit before the end of his third term. He resigned in spring 2007. In each of these cases, politicians fought against their removal, but struggled pointlessly. Everyone watching knew perfectly well that they would have to leave – and soon.

It is in this final Act of a premiership that its meaning is fixed. Theresa May could not legislate Brexit. Thatcher had to go because she had become a megalomaniac, the we of “We have become a grandmother”. She had forfeited that previous instinct for survival and her ability to play a long game in favour of the champers-and-cocaine hubris of the poll tax.

The scale of Johnsons defeat in the Tiverton and Wakefield by-elections shows that Conservatives will no longer vote for him, that middle of the road voters will pick the Lib Dems, and that a Labour voting base antagonised by Starmer will nevertheless hold together long enough to evict Johnson from office. Of the two votes, Tiverton was far the more important. The Conservatives had a 24,000 majority in 2019; to lose a seat that safe is to be back in the mid-1990s, in the same territory as the 2019 European elections, where the party won less than 9% of the vote. This is right-wing voters wanting their party to suffer, and to change before they will vote for it again.

Labour’s idea of how to bring Johnson down is to repeat what sounds like a compelling message, and one to which no rational being could object. Boris Johnson must leave because he was our king, our law maker, and he would not abide by his own rule. He shamed the law, and so long as he remains in power the state can never be well again.

The supposed genius of this message is that it is one that any Conservative might accept. And therefore one that moderate, right-wing voters can internalise, and that the Conservative press can share and amplify. Repeat and rinse. Repeat, until he leaves.

At its end of this argument is a very cautious solution: replace Boris Johnson with Liz Truss or Rishi Sunk or whoever else, and the state is repaired. Nothing significant needs to change. In relation to the great crises of the day, Covid, climate change – everything can and should stay the same. Ending politics at that point leaves unchallenged Johnson’s riposte, that he and his allies got the big calls right. When of course he did nothing of the sort: his indolence caused tens of thousands of people to die under Covid and his apathy, as the world burns, threatens thousands or millions more. This way of understanding politics makes no one a socialist. Nor does it equip any single voter with a reason to switch from voting Conservative once Johnson’s replacement has been appointed.

There is another way, however, in which the argument could go. Assume, for a moment, that I am right and most voters have now given up on him.

If Johnson remains in place until the last conceivable point at which a palace coup would leave a new leader with a fair chance of winning a general election afterwards (in other words, until somewhere between October 2023 and May 2024), then every time he appears on our shared screens it will be in this context of universal hostility. Every partisan measure, from Rwanda, to weights and measures, to the imagined return of grammar schools… will feel like a desperate ploy of an unpopular populist regime.

The longer Johnson remains in office, now that the people have had enough of him, the more damage he could do to the causes with which he is associated. Why is Johnson a liar? Because of the school he attended, and whose value he embodies.

This is the story for which the left needs to find an audience. Why has he introduced corruption on a massive scale, as over the Covid contracts? Because this is how the Conservatives always reward the rich. What do we need instead of Johnson? Everything gone – Johnson’s class, his generation, his media allies. Everyone tainted by him. All of them.

The Supreme Court hasn’t changed

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It was Paul Buhle who set me thinking about Louis Boudin (above), lawyer, first generation American Communist, ancestor of two generation of US leftists, and author of Government by Judiciary (1923), which is a sustained polemics against the US Supreme Court and one worth revisiting this week above all.

By the time he wrote the book, Boudin had been a practising lawyer for a quarter of a century. He had been other things too: a trade unionist, a delegate to the International Socialist Congress, and had run on seven occasions for elected judicial office with the backing of the Socialist Party of America.

Over two volume and more than 1000 pages, Boudin pursues the argument that the Supreme Court is the greatest force within American public life guaranteeing the dominance of conservative groups – even when a large majority of people reject their opinions.

“Our judges,” he wrote, “declare unconstitutional what they consider unwise or unjust or inexpedient – being guided almost exclusively by their philosophical, political, social and economic beliefs, and little or not by constitutional texts” (v1: 23)

One reason Boudin is able to sustain this argument over 150 years of American history from 1776 is that, as a lawyer, he had access to many of the celebrated decisions of the Supreme Court, and was able to show that the hegemony of the Supreme Court over the other institutions of American life was not obvious from anything written in the Constitution and therefore had to be created late and retrospectively and by defeating rival understandings.

It was not until 1895 (i.e. more than a century after the Court was founded), that its justices began speaking of bills passed by Congress as “unconstitutional”, meaning that not just that they did not bind the court, but that they could not bind either the President or Congress (v1:99).

That innovation, he argued, abrogated to the Court a power it did not have in the Constitution. One comparison was with the older pre-independence and common laws courts from whose practice the US Supreme Court supposedly derived. Faced with legislation they judged irrational, those Courts might strike it down, but they could not legislate on behalf of the legislature. All they could do was return the question, as it were, to elected lawmakers, to make a proper and lawful statute.

The US model created a system of “Judicial Power,” Boudin wrote, in which the Court was not merely the highest power of the US Constitution. It was in practice the only power.

American was, in consequence, a personal dictatorship with the composition of power determined not by who won elections but by “the physical vigor” of the persons who held senior judicial office (v1: 379 – and this was written a century before the death of Ruth Bader Ginsburg).

Key to Boudin’s argument were the decisions of the Court in upholding slavery, resisting the Republic during the Civil War and later in sabotaging Reconstruction, i.e. the attempts to transform the US South and root out the dominance of racial power.

From Lincoln’s perspective, the Civil War had required him to disregard the Court, and to ignore such landmark cases as Dred Scott v Sandford (1857) with its finding that people of African descent, whether slaves or free, could not enjoy the privileges of the Constitution (v2: 69).

As for Reconstruction, that was supposedly embodied in the 14th amendment, by which Congress prevented states from passing (for example) voter restriction laws to disenfrachise black voters. In the Slaughterhouse cases (1878) the Court effectively rewrote that Amendment to the point where it did not exist at all (v2: 114).

Government by the Supreme Court, Boudini wrote, meant “Government by a few Conservative men” (v2: 531).

And his book written in 1923 ends with a warning of where the Court would go next: towards the unremitting “exaltation of property at the expense of liberty”.

Obviously much has changed in the century since Boudin’s book was written, the Court has both lifted certain rights up (the 2nd Amendment) and cast others down (eg the 14th again and always) but what hasn’t changed is this. In a country where conservatives are preparing to wield unprecedented cruelty against their opponents – the judges will never be a reliable shield against authoritarian power. Rather they will be its reliable servant.

I have not written any of the above in order to make people passive or despondent, quite the reverse. One of the things Boudin shows is that elected officials (Jackson, Lincoln…) were able to defeat the Supreme Court where they and their supporters mobilised. The most celebrated example came in 1937, after Boudin’s book was published, when Rossevelt grew exasperated with a series of conservative decisions by the court.

The U.S. Constitution does not define the Supreme Court’s size, and Roosevelt threatened to pass a Judicial Procedures Reform Bill which would have enabled him to appoint a new justice for each judge over the age of 70 who did not retire. Conservatives accused him of court-stacking, but such was the pressure on the Court, that it ceased to obstruct new Deal legislation.

The only thing which prevents Democrats and their allies today from cutting the Supreme Court down to size, in other words, is simply the moderation in their own heards, their cowardice and invocation of the law even where the law is hostile to them.

It is that spirit which we need after Rowe v Wade, an honest understanding of the role played by the Supreme Court, and a willingness to go beyond legalism – in Britain as well as the US.

(For more on the Boudins as a radical family see these pieces on Kathy and Chesa Boudin).

(Or, for more on the relationship between politics and the law, see my new book, ‘Against the Law,’ which is published by Repeater on 12 July.)

Why the left should demand fewer laws

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Every reader of this piece will be familiar with a certain argument for neoliberal government. By the end of the 1970s, we were told, laws governing welfare, employment, housing, etc. had grown out of control. Ever since then, politicians on the right and centre-left of politics have been trying to reduce them back down to their right size. Reducing the law and therefore the state is said to be an ethical decision, since it serves to remove the power of unelected bureaucrats, lawyers and judges and gives people control over their lives.

That way of justifying right-wing politics may be very old; it has not gone away. Anyone who has followed the news since Boris Johnson became prime minister will have noticed how at twelve-week intervals our government republishes a press release promising a ‘bonfire’ of workplace or environmental or EU laws, to take place somewhere in the near but not too near future, and how loyally this intention is always reported as news.

Yet if the law is always just about to be reduced to size, what is extraordinary is that there is never any less of it. Every year around 14,000 pages of new legislation are added to the statute book including both primary legislation (meaning Acts of Parliament), and secondary legislation (such as Statutory Instruments, in other words, supposedly non-controversial laws made by ministers). This is double the volume of legislation of 40 years ago. Tony Blair’s government passed 382 Acts passed between 1997 and 2007; the 2010-5 coalition government created 1,785 new criminal offences, Boris Johnson made 425 Covid Regulations between March 2020 and April 2021. The list goes on and on.

What I want to do in this piece is to propose some explanations of why, contrary to neoliberal promise, such law is never diminished but only in fact grows.

‘Neoliberalism,’ writes George Monbiot, ‘sees competition as the defining characteristic of human relations. It redefines citizens as consumers, whose democratic choices are best exercised by buying and selling, a process that rewards merit and punishes inefficiency.’ For Naomi Klein, neoliberal economics imagines ‘the market’ as an ideal rather than a reality: a world in which needs are always satisfied in the end. Any disturbance is blamed on a human failure to match up to the ideal. Therefore, the solution is always the same: ‘a stricter and more complete application of the fundamentals.’

Therelationship between neoliberal theorists and politicians has changed over time. So, between 1979 and 1990, when Margaret Thatcher was Prime Minister, she met Hayek and Friedman, and they corresponded with her. But by 1997, when Tony Blair was Prime Minister, Hayek was dead and Friedman old. Blair met Thatcher, not long after taking office, and was determined to be seen as governing in linewith her politics. But he was also, at different times, eager to appear a social democrat, a moderniser, an enthusiast for public education or the new knowledge economy, and many other things besides.

Yet the reason why it is worth seeing this period as a whole as one of neoliberal rather than, say, ‘right-wing’ government is that on the surface political competition continued, and centre-left parties have been just as dazzled by the vision of a society of small shareholders, and just as committed as their right-wing counterparts to policies of cuts and privatisation.

Hayek and Friedman were not legal theorists, but a coherent idea of the law emerges from their work. Competition, they argued, would produce a harmonious society. Their emphasis on market solutions is at the heart of neoliberal support for increased law. When the values of market-based systems for, let us say, the pricing of water or of rail are explained to the public, it is very often said that the market is superior to the state because it finds an equilibrium between supply and demand by itself and without needing state aid. But what is supposed to emerge without difficulty never does. A judge is always required.

Neoliberal politicians depend on the law to constitute market relationships. Friedman conceded the point, writing in his 1962 book Capitalism and Freedom that every market must have rules and someone in a position of authority (a judge) to enforce them: ‘The existence of a free market does not of course eliminate the need for government. On the contrary, government is essential both as a forum for determining ‘the rules of the game’ and as an umpire to interpret and enforce the rules decided on.’

Anyone who has ever tried to read a practitioner’s guide to environmental law will have seen how this works in practice. You can convey the totality of all our shared ecological laws in a single volume with little more than 1000 pages of text. But, of all the things that a non-lawyer might expect to find in that book—guides to expropriating polluting industries, punishments for the worst offenders to the warming of the planet—none are there. What we have instead is a vast amount of detailed regulation, laws for the circumstances under which plastics can be made, rule concerning who is allowed to sell a plastic bag and at what price. The managers of polluting businesses are faced with a choice: they can choose to follow government regulation, or if the price of such obedience would mean that competitors acquire a relative advantage over them, they can choose to ignore it, nothing that the fines are derisory, and that the state will no more challenge their power than will it jail tax evaders, etc.

Neoliberal governments depend on the law to facilitate their advance. They need laws to create market relationships, but the actors in these markets behave in different ways to how the neoliberals promised. Getting private bodies to deliver services rather than the state is supposed to drive down prices. But in the reality of privatisation, massive subsidy is needed to maintain a privatised rail network. The state becomes a giant piggy-bank, as we saw under Covid, for those businesses who are most brazen at exploring their contacts in government

Law has often grown as part of a conscious project of creating right-wing voters. The classic example is the introduction of ‘right to buy’. The Housing Act 1980 gave council tenants an option to purchase their home at a discount of up to sixty percent compared to the market rate. The scheme privatised a significant part of the welfare state, and succeeded because the funds were found to finance it on terms so advantageous that opposition would be limited to a hostile minority of tenants who were committed to public ownership. Everyone else would take what amounted to a huge bribe.

Since the policy was introduced, a market in houses has increased the price of accommodation. Ex-council homes are bought in order to be sold; some landlords have been able to build housing empires of hundreds of properties—hence the conditions of scarcity and high rents which characterise the UK housing market.

This proliferation of laws since 1979 represents a political ideology that understood itself, in its first decade, to be engaged in the task of regime change. It was hostile to the previous settlement and sought to overturn it. Whenever committed people have taken power and sought to entrench their values in contrast to what went before, they have tended to do so by introducing a new ‘constitutional’ settlement which future generations would be required to accept. In the UK, measures like the Right to Buy and balloting rules for strikes are now widely treated as inviolable, the boundary line between rational government and a return to the chaos of the last days of the 1974-9 Labour government. Without these laws, the story goes, the dead would go unburied, the rubbish would again pile uncollected in our streets.

This reality, in which laws have expanded at exactly the same time that the social power of most people has diminished. undermines the common-sense idea that because the Right is always talking about reducing the state, the Left should therefore call for its expansion.

In terms of the legal system, the workers’ movements and allied causes could instead call for fewer laws, and better ones. Rather than repeatedly immersing ourselves in the state, we should be distancing ourselves from it – using it tactically and sceptically, if at all.

Of course, any radical theory should not be interested only in how much law there is, but also in how the law is shrunk: if you were to abolish all housing law tomorrow while preserving everything else the same, for example, all tenants would not find themselves secure in their homes. Rather, they would be subject to the whims of their landlords who would be free to evict them at will. The same is true of employment law.

The slogan of cutting the law back down to size does not becomes a radical programme unless it is demanded by a social movement of workers or the poor.

But this does not change the essential point, that the movement of the poor and the oppressed are at their most impressive and creative when they depend on people organising themselves, rather than using the law to negotiate a better relationship with power.

We need stronger movements, and we get them when people mobilise outside the law.

Rather than swallowing neoliberal falsehoods about shrinking state power, we need to do away with laws that entrench capital’s power at everyone else’s expense.

This is a taster for my new book, ‘Against the Law,’ which is published by Repeater on 12 July.

On Rwanda; or Wasn’t the law supposed to rescue our Trump wannabes, and if that isn’t happening, why not?

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This is how I like to imagine the scene in the Court of Appeal, as that court was obliged to sit late and reconsider the lawfulness of the Rwanda flight. Counsel for the Secretary of State staring desperately into his black mirror, praying for instructions – anything. The Master of the Rolls spitting fury, denouncing the incompetence of the administration that had ruined his and his colleagues’ evening off.

The morning after Boris Johnson squeaked through his no confidence vote, his allies were already setting out his plans for survival. The Prime Minister would announce such a blizzard of new laws, regulations on the NHS, a statute for the Northern Ireland trade deal, laws on weights and measures, that with this new burst of energy his administration would be transformed.

Instead, every time Johnson legislates, it makes his government seem less competent than before. This is the failure at the heart of Rwanda: that the government wants prospective refugees to believe that the scheme is so heartless that they should not come to Britain, and the courts to find that it is so kind and generous as to make no difference. A better legislator might have drafted a scheme which plausibly lacks both ways at once; Johnson has neither the skill to draft rules of that subtlety nor the patience to wait and let his opponents exhaust themselves.

For years, his ministers have been promising crowd-pleasing measures, to abolish no-fault evictions for tenants and enhance workers’ right by introducing stable contracts for gig economy workers. Each has been subject to counter-lobbying from landlords and employers. The question becomes what the law will say in detail – will each clause help the people, or only Johnson’s people? The answers are difficult, require time and thought. Again and again, the Prime Minister loses interest, postponing legislation to a future which never comes.

Johnson believes ministers should be freed from parliamentary control, upon which they will be empowered to act with unprecedented speed in response to crisis. (Hence his criticism of the NHS as a “Blockbuster” service). Yet whenever Johnson legislate in haste, he repents at leisure. We have seen that over the Northern Ireland Brexit protocol, which Johnson now derides as a shoddy piece of drafting, unfit for purposes and needing to be scrapped altogether. Maybe so – but he wrote it.

It is the same with the Covid laws which are at the heart of Partygate. Johnson says it “did not occur” to him that holding social gatherings “might have been a breach of the rules”. It is true that the Coronavirus laws were complicated.

In the first year of the pandemic, Johnson’s government introduced 66 Coronavirus regulations. Together, they were in practice a single set of rules being changed weekly, at times daily. The government was just as much correcting its own previous errors as it was taking control of the Covid-19 crisis. In our unwritten constitution, only Parliament should legislate to create a criminal offence. Under Covid, we were governed by Ministerial decree.

The enormous health crisis of Covid gave Johnson the chance to rule in exactly the way he liked: without delay, without Parliamentary scrutiny. The laws he made in these conditions of executive freedom are the same rules whose breach now makes his position untenable, and cause that sense of chaos which with every new law he accentuates.

The essential point is surely this: in 2016, under the impact of Trump’s election and the Brexit vote, the opportunities were created for a new style of government, one in which economies would retreat within their national borders, international institutions would be dismantled, and the deep structures of government and law would have to change to catch up with this new normal. But that breakthrough has not yet been consolidated on the scale (say) of the neoliberal breakthrough of 1979-80 (after which the Reagan and Thatcher victories, really did seem to change the world). So that states which have turned fully towards the new politics (Brazil, Hungary, India) are balanced by others which considered turning national-populist but have so far pulled back from the brink (the United States).

So judges, whose job is to oversee the compromises on which any society is based, look back at the populists and find them incompetent. Not the spirit of the age but representaives only of is stupidy and chaos. Against the court’s instinct to uphold the legality of whatever nonsense that ministers put before them, the judges find themselves reluctantly playing the part of the sand whose grit causes the machine to explode.

Now let us see the same process, not from the perspective of the courts, but the social movements whose interests the radical lawyers serve.

The most heartening thing about the Rwanda flight was that for the first time in a year you could see an activist culture remerging: the demonstrations outside the Home Office, the people blocking the road outside the detention centre, the circulation of the details of the company which was going to host the flight and of the businesses which trade with it. That resistance was the one force capable of consolidating this victory and ensuring that it was not just one flight but all of them that stop.

The law may well be part of this story, but what will decide whether the Rwanda scheme is scrapped is ultimately not the courts – rather it is that mobilisation of people’s willingness, that democracy of the streets on which any lasting victory depends.

For people who are interested in longer thoughts on the law, what kind of laws social movements need, and why movements need to lead the law rather than follow it, my book Against the Law: Why Justice Requires Fewer Laws and a Smaller State is out with Repeater in July.