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.