Monthly Archives: July 2013

Do socialists still have an alternative concept of rights?


An obvious starting point is Karl Marx’s position on human rights. We can begin with his response in 1844 to Bruno Bauer’s pamphlet The Jewish Question, in which Bauer opposed Jewish demands for political liberation on the grounds that no one in Germany was emancipated and that Jews should fight not for their liberation but for universal liberation. This sparked some caustic remarks from Marx on the limited notion of liberation espoused by Bauer. Political emancipation, Marx observed, took the form of negative liberties: the right not to be imprisoned, the right not to be prohibited from having a profession, etc. Marx wrote: “Liberty … is the right to do everything that harms no one else … [T]he right of man to liberty is based not on the association of man with man, but on the separation of man from man. It is the right of this separation, the right of the restricted individual, withdrawn into himself. The practical application of man’s right to liberty is man’s right to private property.”

Over the next forty years, Marx and Engels were to sharpen this critique of rights and develop a richer sense of how an alternative society might work. But they never wavered from this original scepticism to demands for a universal “freedom”. Faced with the proposal that there should be a right to work, Marx’s instinctive answer was to demand what his son in law Paul Lafargue nicely formulated as “the right to be lazy”, i.e. rather than just demanding that all should be able to work, Marx and his allies wanted everyone to be free from having to work.

Perhaps the best developed example of Marx’s critique of rights was his 1875 Critique of the Gotha Programme, addressed to the nascent SPD. All universal rights, Marx argued, by their nature, result in unequal treatment: “Right, by its very nature, can consist only in the application of an equal standard; but unequal individuals (and they would not be different individuals if they were not unequal) are measurable only by an equal standard insofar as they are brought under an equal point of view, are taken from one definite side only — for instance, in the present case, are regarded only as workers and nothing more is seen in them, everything else being ignored. Further, one worker is married, another is not; one has more children than another, and so on and so forth. Thus, with an equal performance of labour, and hence an equal in the social consumption fund, one will in fact receive more than another, one will be richer than another, and so on. To avoid all these defects, right, instead of being equal, would have to be unequal” (emphasis added).

Now as it happens, contemporary law knows, on occasion, laws of unequal treatment to achieve an equal outcome which operate in a shadow of the same spirit as this passage from Marx’s Critique. One example is the employer’s duty under section 20 of Equality Act 2010 to make reasonable adjustments for a disabled worker. If an employer employs two workers, one of whom is disabled and uses a wheelchair and one of whom does not, and the doors to enter the workplace are beside a short flight of stairs, an equal balance between disabled worker and employer can only be achieved by the employer buying a ramp to the door. The same treatment of both workers would result in the employer discriminating against the disabled worker. An equal outcome depends on unequal treatment. Even contemporary law, at its present limited stage of development, obliges the employer to buy the ramp, although it allows the hegemony of the employer back in the by making the purchase necessary only if it would be “reasonable” to require it. But what for contemporary law is a heavily-qualified anomaly is in Marx’s hands, the principle under which an entire legal system would be constructed:

“In a higher phase of communist society”, he wrote, “after the enslaving subordination of the individual to the division of labour, and therewith also the antithesis between mental and physical labour, has vanished; after labour has become not only a means of life but life’s prime want; after the productive forces have also increased with the all-around development of the individual, and all the springs of co-operative wealth flow more abundantly — only then then can the narrow horizon of bourgeois right be crossed in its entirety and society inscribe on its banners: From each according to his ability, to each according to his needs!”

This is one of those concentrated passages of careful thought that repays careful re-reading. First of all, it is clear from it that Marx, despite, his rights scepticism, understood the (virtuous) desire for justice that lies behind most rights discourse (whether the rights themselves are virtuous or otherwise). He was not hostile to justice but passionate about going much further in the same direction.

Second, in referring to “phases” of communist society Marx is describing socialism not as a one and for all process (before the insurrection nothing, afterwards everything), but as a series of steps towards an ideal. Like the novelist who writes and rewrites the same book, or like Marx himself in his decades long struggle to complete Capital, we should not assume that the first draft will be the final version.

Third, long before a just system of “rights” could possibly be practical, all sorts of conditions will have to be encountered and passed: the breaking down of the division of the day between work and non-work (i.e. art, leisure, sport…), the spread of co-operative forms of production, and the extraordinary increase in human productive capability that we could have if only the whole world had universal access to the very latest technology on the same terms (i.e. in contemporary terms, Marx is envisaging a world in which all of Africa and all of Asia had access to the same levels of agriculture and industry as the most developed regions of the West; Marx is asking what law there might be during, and beyond, transitions of this scale).

In these circumstances, the revolutionary fragment buried even in laws such as the present-day Equality Act law could be developed and generalised, i.e. there would be “rights”, but unlike the rights enshrined in the ECHR, etc, the equality principle would be equality of outcome rather than equality of opportunity. Everyone should give what they can; everyone must have what they need.

Drawing on Marx, a useful approach to the problem of right in the crisis of the present day, could be to disregard temporarily the search for further and better lists of rights in order to focus on their revolutionary kernel: i.e. the right to a just outcome. Part of establishing a fair outcome depends on a system of expropriation.

There are models, even just under contemporary law, of how this could work. In the emerging field of environmental law, there is a developing concept of environmental “responsibility”. For example, Section 24 of the South African constitution provides a right of all people to have access:

“a. to an environment that is not harmful to their health or well-being; and

b. to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that ­

i. prevent pollution and ecological degradation;

ii. promote conservation; and

iii. secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.”

A moment’s thought will show that the idea of a right to prevent ecological degradation is a right that is only capable of enforcement if there are others, i.e. people holding property, who have caused or risk causing that degradation.

Polly Higgins’ Eradicating Ecocide uses interchangeable terms of environmental “responsibility” and “stewardship” and portrays the key task of the moment as being to shift the focus from commodity to responsibility.

Now we are used to hearing “responsibility” as a weasel-word to justify (for example) right-wing arguments that welfare benefits should not be universal, but should be made conditional, e.g. on a person taking up low-paid part-time work, which will contribute to a general lowering of the average wage.

But there are other notions of “responsibility” which point in more interesting directions. When family members ask a court to determine where a child should live, the starting question is whether the applicant has “parental responsibility”. The idea is very simply that a child, as a human being, cannot be subject to the ordinary principles of private property, i.e. they cannot be owned. Accordingly rather than asking first “who has the right to care for the child?”, the court’s first question is “who has the duty of care?” (Contrary to the demands of campaigns such as “Fathers for Justice”, the answer will not necessarily be “the father”, it may not even be either of the parents). Section 3 of the Children Act 1989 defines parental responsibility as “all the rights, duties, powers, responsibilities which by law a parent of a child has…”

When a local authority’s social workers have reached an interim view that a child is suffering or likely to suffer significant harm living with their parents (section 31 Children Act), they initiate care proceedings, i.e. proceedings which the authority intends to result in the child being adopted or placed with temporary foster-carers or family members, etc. The initial step in these proceedings is for the local authority to ask the Court if it may share parental responsibility with the parents.

Children Act proceedings are not by any means “model” instances of the law at its best. In “private” Children Act proceedings (i.e. disputes between parents) there are many examples of the law getting it wrong, whether by disregarding the views of victims of domestic violence, or by reaching the right decisions in the event but doing so hopelessly slowly. In “public” Children Act proceedings (i.e. care proceedings), courts are torn between competing instincts including the knowledge that children in care are often bitterly unhappy (it will be recalled how often care homes recur in the Jimmy Savile scandal as locations for the sexual abuse of children), and the consciousness also that some families are actually so unsafe that there is no alternative but to remove the child. But the positive feature of this litigation is the absence of a “parents’ rights” discourse. A parent who says merely that their child is their child, therefore it is their right that the child should live with them, will not get far; the court will expect from a much more serious focus on the true best interests of the child. If only we could learn to treat the ownership of property with the same scepticism with which we already treat the purported ownership of children.

To describe how a full-developed legal concept of environmental responsibility might work: a person who believes that a polluter risks causing ecological degradation on a piece of land, might petition a court complaining that the polluter has lost the right to environmental responsibility for that piece of land. A court would investigate. It might find that the applicant’s case was made out, in which case, they could listen to proposals that the responsibility for that piece of land should be given to another. They might find that the applicant’s case was hopelessly weak. They might instead find that the land should remain with its present owner, but only on an interim basis, subject to the present owner demonstrating that their custodianship was rapidly improving and they were taking all steps to prevent pollution, etc.

There is no reason of principle why there should not equally be an overriding duty of “social responsibility”, i.e. in order for someone to exercise any right as an owner of property, or for any contract to be enforced, the owner should be capable of being challenged by anyone – a worker, consumer, anyone – on the grounds that their stewardship of the property was deficient, and should be given to another. Where an employer did not pay the minimum wage or their workplace was unsafe, the ordinary principle should apply that their workplace should be passed to another.

The rule that is proposed is simple and intuitive. Questions of whether a workplace is properly run could easily be determined by juries, to whom we already leave inquests and sometimes very complex questions of criminal law.

Of course, there is no political will in Parliament for anything like this model of social responsibility because the large majority of political forces are signed up to a vision of untrammeled corporate power, with all the disasters that has caused, in terms of recession, bankers’ bail out, and collective austerity. We are not going to see the expropriation of capital without social upheaval.

But in working out the next step for rights discourse, socialists should go further than the majority of rights activists. We have a concept of right in which the highest categories are human need, and agency to answer human need. The next step is a right of expropriation where property ownership limits human potential.

The simplest rebuttal of the present proposal – for an overarching concept of social and/or ecological responsibility which would be capable of taking priority over all other property rights and any contractual agreements – is that class society has been existence for around 10,000 years without having anything like such a practice. For around a third of that time we have had an idea (i.e. contract law) that property is disbursed in agreements, the terms of which are binding on the contracting parties. No commercial agreement could be attractive if its effect was constantly uncertain. But this is exactly the spirit in which socialists should respond to big questions about what the law should be in future. Socialists should demand what is absolutely incompatible with the conditions of capital and the state: the right not to be exploited.

We ask of course in a modest fashion, pointing out in this way the absurdly-limited conditions under which capitalism allows billions of people worldwide to live.

This article was first published in the June 2013 edition of Socialist Lawyer magazine. The same issue also contains articles by Michael Mansfield, Anna Morris, Wendy Pettifer and many others. The magazine is sent to all members of the Haldane Society of Socialist Lawyers. Membership rates start at £20 per year.

Mo Farah and the fight against racism


Going into the London Olympics, Mo Farah was far from favourite for either of the events in which he was running. As for his first final, the 10,000 metres: Wilson Kiprop and Moses Masai of Kenya had both run the distance in 27 minutes earlier that summer, while the 2004 and 2008 Olympic champion Kenenisa Bekele and his younger brother Tariku (both running for Ethiopia) both had times of under 27:05. Farah’s best time for the year was a mediocre 29 minutes and 21 seconds. Andy Bull of the Guardian tipped Bekele for a third gold: “From the mountain top he occupies, Farah is a figure somewhere in the foothills, a man only just beginning to prove himself capable of competing at the highest level.” In the 5,000 metres, Farah had run a decent 12:56.98, but at just one race in July 2012, the Diamond League in Paris, ten Kenyan or Ethiopan runners had finished faster than this time.

As a black British athlete Farah was forced to carry further burdens. Weeks before the Games, an anonymous article in the Daily Mail complained that there were 61 “plastic Brits” in the Olympic squad. The article gave examples of nationality-swappers such as a formerly Ukrainian wrestler Olga Butkevych who had been granted a UK passport only in 2012 at the age of 26. The figure of 61 plastic Brits was gathered by counting every UK Olympic competitor to have been born (like Farah) outside Britain. Its journalists illustrated the piece with a photograph not of (white) Olga Butkevych nor of (white) Bradley Wiggins (born in Belgium to an English mother) but of Yamile Aldama, a black triple jumper who had been born in Cuba.

Mo Farah’s first event was the 10,000 metres. At the start, Kenenisa Bekele made his way straight to the front, with Farah in second. Yet far from stretching the pack, Bekele in fact slowed the race, going through 400 metres in just 65 seconds. The pace then slowed further, so that when Zersenay Tadese of Eritrea hit the front, after six laps, his average time was just 76 seconds, or about 13 second per lap outside world record pace. Tadese, the world record holder for the half-marathon, might have been expected to hit the front hard and sustain a fast pace, yet having briefly opened a gap, Tadese raced hard for just one lap (in 61 seconds; after which Farah was down in twefth and seemed to be losing touch with the leaders) before allowing the race to settle again into a pace of 64-65 second per lap, allowing “sprinters” such as Farah and his training partner Galen Rupp to narrow the gap on the leaders.

Three countries had teams of athletes in contention: Kenya (with two runners; Kiprop having pulled out after losing his shoe mid-race), Ethopia (three still in contention) and Eritrea (three). Victory would have required only a first runner in the team to set a fast enough pace, and a second (or third) to stick with them. Athletes hate running like a team; nobody wants to be the “bunny” who sets a hard pace, knowing they will not sustain it and will have to drop out, and someone else will benefit from their pacing. But the refusal to run collectively – this shared cowardice – cumulatively gifted the race towards athletes known for their fast finishes.

Mo Farah’s race winning time was slow: outside the top 20 races run all year; half a minute down on the best Kenyan times for 2012, 45 seconds outside his personal best, and 75 seconds outside the world record. Yet one part of the race, above all, was impressive: Farah’s last lap was run in just 53 seconds, a shattering 9 seconds faster than any other lap he ran all race.

The final of the men’s 5000 metres followed the script of the 10000 metres, with a series of athletes coming to the front briefly before slowing immediately on reaching the head of the race. Farah was one of barely a handful of runners “doubling up” by running in two events (Rupp was another; while Abadalataai Iguider of Morocco combined the 5000 metres with the 1500 metres in which he came third). Unlike the others, it was his third tough race in a week. To a far greater extent than in the 10000 metres, Farah had to fight to impose himself on the race. Into the last lap, he was leading from only 2-3 metres from a group of runners including Bernard Lagat of America a former Olympic silver medallist over 1500 metres, and Iguider, each of whom could have been expected to have a faster kick.

Farah’s winning time was again very slow: 64 seconds outside the world record, well outside the top 20 times run in the year. At 13 minutes 41 seconds, Farah was more than 15 seconds slower than the slowest time that any of the runners had run in qualifying for the final. Once again Farah’s victory was down to his sprint. As in the 10,000 metres, he ran the last lap in 53 seconds. By way of comparison, at the same Games, David Rudisha of Kenya ran laps of 50 and 51 seconds in the 800 metres final, and in doing so shattered the world record. Farah was only two seconds slower over his last lap having run six times as far.

Beyond Biggles

“Racism”, Dave Widgery of Rock Against Racism (RAR) once wrote, “is as British as Biggles and Baked Beans. You grow up anti-black, with the golliwogs in the jam, the Black and White Minstrel Show on TV and CSE dumb history at schools. Racism is about Jubilee mugs and Rule Britannia and how we won the War…” Widgery continued by referring to the visible racists of the National Front, then active on Britain’s streets, before turning his fire on what we would today consider the “institutional racism” of the police, courts and immigration system: “Outwardly respectable but inside fired with the same mentality and the same fears, the bigger danger is the racist magistrates with the cold sneering authority, the immigration men who mock an Asian mother as she gives birth to a dead child on their office floor, policemen for whom answering back is a crime and every black kid is a challenge.”

Yet anti-racism too is a British tradition, and it has taken many forms, sporting as well as (like RAR) musical. Many football fans will be familiar with the story of how John Barnes, on signing for Liverpool in 1987, become only the club’s second black player, and received racism initially from both away and home fans before winning over the Anfield crowd by his brilliance on the pitch. It is a story encompassed in a famous photograph of Barnes back-heeling away a banana which had been thrown onto the field. Most football clubs in Britain have something like their own “John Barnes” story, and most sports have their “John Barnes” moments. National sporting teams play a part in this story; with anti-racists using their multiracial character as a rebuke to the racism of the politicians. In 2009, BNP leader Nick Griffin told a radio 1 journalist that English footballers Rio Ferdinand and Theo Walcott were not ethnically British; a racist sound-bite that the Labour-supporting Mirror newspaper quoted back at him during the 2010 election.

The iconic image of the Games was the sight of Farah swapping his “Mobot” celebration with 100 metre champion Usain Bolt’s “lightning Bolt”. Former Children’s Laureate Michael Rosen tweeted, “Nick Griffin just choked on his dinner when Mo Farah won. Been rushed to hospital. An Asian doctor is treating him.” “Mo Farah’s famous victories in the 10,000m and 5,000m seemed like a validation of British society’s inclusivity and openness”, Oliver Holt wrote in the Mirror, “They felt like a victory for tolerance and acceptance, a thumb in the eye to the BNP and bigots ­ everywhere.”  Even papers usually associated with the Conservative Party were briefly willing to promote a similar message that Farah’s victory proved the viability of an England increasingly people by migrants. In the Daily Mail, Yasmin Alibhai Brown quoted Farah’s answer, after his victory in the 10,000 metres, when he was asked if he’d rather be representing Somalia, “Not at all, mate. This is my country.” “Mo Farah has sent a message of hope to all migrants” said the Evening Standard.

In the 1980s popular views on racism moved to the left (even while society, in other ways, was moving to the right). More recently however, there has been a sustained increase in racism, encouraged by politicians from each of the main parties but finding an unwelcome resonance in popular attitudes. It began with New Labour’s relabeling of refugees as “bogus asylum seekers”, continued with press attacks on Muslims during the hot days of the War in Terror and the easy ride given by the same papers to the anti-immigrant “think tank” Migration Watch, took in David Cameron’s courting of UKIP and EDL supporters by denouncing multiculturalism, and has continued right up to David Starkey’s verbal assault on the London rioters (one of whom was Farah’s brother) as “whites who have become black”.

The old racism of the 1970s looked ridiculous in the bright glare of the Mo-moment; and even the “new racisms” were temporarily silent in response to the victory of this Muslim former child refugee.

After twenty years of defeats, the Mo Farah moment articulated anti-racism in a visual, digital form, immediately, without requiring any of the “cultural translation” through the newspaper form in which the left specialises, but which in an age of social media leave most people cold. The challenge is to convert enthusiasm into the sinews of permanent campaigning against the racism that continues to affect so many lives: against ethnic profiling by police officers, against deportation, against racial bias in sentencing.

“Only connect”: we need an anti-racist idiom that joins up the sports fan with the protester against deaths in custody; the blogger with the athlete; the radical artist with the hundreds of thousands who grasp that racism is a poison and are open to the activist’s question, “so what do we do about it?”

For a moment, Mo reminded millions of all of us of the essential sameness of our lives, and of the brutality of the racism which treats the same experience so differently. His victory was a step in advance of the great strides that are still to come.

The above is an extract from my chapter in London 2012 How Was It For Us, published last week by Lawrence & Wishart. Contributors include Mark Steel, Zoe Williams, Billy Bragg, Suzanne Moore, Yasmin Alibhai-Brown, Gareth Edwards, and others. Available pre-publication, £2 off, just £12.99, post-free signed by Mark Steel from here