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 authoritariansideofpopulism and the benign laws it smashes, as well as the malign onesitcreates.
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.
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.
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.
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.)
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 reportedasnews.
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.
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.
Havelock Ellis’s 1890 bestselling book, ‘The Criminal’ was written to explain to a British audience the main discoveries of European (principally, Italian) criminology. The subject had emerged as a serious and rational science, Ellis argued, about which the English were almost entirely ignorant.
Ellis has gone down in history as one of the good guys; in 1896, he was one of the first writers to record his own experiences on mescaline. In 1897 he published Sexual Inversion, the first English monograph on homosexuality, which Ellis insisted was neither a sin nor a sickness.
Applying his sympathetic intelligence to the career criminal, and guided by the most sophisticated research of his day, what were Ellis’s conclusions?
He found that crime was a biological mandate, its code printed on the criminal’s body. These were some of their recognisable characteristics: “scanty” beards (in men), an abundance of beards (in women), small heads, large heads, enlarged lower jaws, enlarged canines (to this extent, he sees to have confused criminals with vampires), underdeveloped teeth, medium-length noses, black hair, receeding hairlines, pallid skin, early wrinkles, continuous eye-brows, early grey hair, “a curious fixed look of the eye”, young parents (theives), elderly parents (murderers), “extraordinary and ape-like agility,” left-handedness, ambidextry, a lack of intelligence, hyper-intelligence, tatoos (40 percent of children at one Turin reform school were already sporting messages of defiance, initials, or promises of love or vengeance).
I’ve included one of three pages of his book which are dedicated to drawings of what Ellis insisted were recurring criminal profiles.
Ellis also gives examples of criminal slang, which, Ellis insists, was identical to the dialects spoken by England’s racialised others – Jews and gypsies. “I was jogging down a blooming slum in Chapel,” Ellis hears one thief say, “when I butted a reeler, who was sporting a red slang. I broke off his red jerry, and boned the clock, which was a red one, but I was spotted by a copper, who claimed me. I was lugged before the beak who gave me six doss in the Steel. The week after I was chucked up I did a snatch near St Paul’s, was collared, lagged, and got this bit of seven stretch…” Red apparently means golden. Readers can judge for themselves whether this really was, as Ellis seems to think, an example of immigrant Yiddish/Romany.
What comes out of his book, really, is the sense that criminals belong to a class utterly distinct from the rest of society. You can jail them (Ellis was against both capital and corporal punishment), measure them, weigh them, etc, and they will be a distinct group of people in all ways separate from the majority of society around them.
It never occurs to him that some of these supposed distinctive traits (pallor, underdeveloped teeth) were really just signs of poverty, or that others (eg tattooing) were a product, not a cause, of criminality.
One thing I find heartening about Ellis’s book is his insistence that he is analysing nothing, rather what he is doing is simply recording the most authoritative science of his day – the work of Professor Lombruso of Turin, and Professor Enrico Ferri in Rome. It is a wise thing to remind ourselves sometimes that subjects grow up in university, acquire a reputation of knowledge and a scaffolding of supportive research, but are ultimately mistaken.
Finally, why bring up Ellis now, when his ideas are as discredited as the phrenology on which his book, at several points, leans?
As I’ve warned elsewhere, we are about to enter a new golden age of criminological research which is based on the computing power of machines and their ability to spot patterns. Such research tells us for example that if you want to spot a repeat criminal there are few more reliable statistics than the age at which a child first came into contact with the police. (Ellis, you will be pleased to hear, has a section remarking on the wisdom of this very same finding).
In practice, what such research does is very similar to the sociologists of 100 years ago: it treats law as sacrosanct, its breach as the same thing whether the law being broken is trivial or vast, whether it is one which isn’t really treated as a crime (dangerous driving) or one which is and shouldn’t be. Just as the sociologists of 100 years ago were busy with their rulers and weighing machines, the genius of the computer is said to lie precisely in its ability to spot a pattern which no-one else has seen.
But if we are back in 20 or 30 years time predicting criminality once again on the length of people’s hair – the technology of today has a much greater ability (through its influences such as probation apps) to decide how long a convicted person spends in jail.
Do not think I’ve written this post to show how much smarter people are today than the Victorian. Not for one minute. I’ve written it because we’re actually -more- gullible in relation to our machines.
What’s the right amount of law? Most people reading this, I suspect, will be convinced it’s the wrong question to ask. We are all taught to assume that the law is one of those things of which you can never have too much, like science, or art, or laughter.
There’s a reason why science is expected to keep on growing forever, which is that you never know what it’s going to be used for. Things end up fitting together in ways that the people who discovered them could never have imagined. The more knowledge, the better.
But law is not, in this sense, knowledge. If you want a better analogy, it is something like architecture or computer code; it is rules to be used a purpose. One of the oldest laws in England were the sixth-century decrees of King Aethelberht of Kent This, for example, is a candidate to be one of the oldest known laws of England, “If a person kills someone, let him pay an ordinary person-price, 100 shillings”.
The rule assumes a victim and a perpetrator, and around both of them armed families. A perpetrator has killed a victim; the victim’s family must be avenged. The king fixed sume to be paid and which the victims are supposed to accept to in order to avoid what would otherwise be a cycle of retribution, with murder requiring murder without end.
The point of that law was to keep the civil peace. In drafting it, King Aethelberht needed to get the content of the law right. It mattered that the compensation was set at 100 shillings (five pounds) and not 10 shillings or 10,000. Make the payment too high and no-one would pay it and victims’ families would have no choice but to seek revenge. But if the compensation was too low, then feelings of resentment would smoulder. Compensation would be paid, and the victim’s families would throw it back in the faces of their oppressors. King Aethelberht’s was justified and necessary if, and only if, it saved lives.
These days, the main problem of the law is that there is too much of it. There is a social contract between ruler and ruled. The ruler expects you to follow some basic rule. If you breach it, you can be punished. The victim of your rule-breaking might sue you (in the civil courts) or the state might litigate on their behalf (criminal law).
The problem with having too much law is that its abundance degrades this contract. A person can be punished for doing something which they neither knew, nor had any reason to know, was wrong. The popular cliché says that ignorance of the law is no defence. That’s true, but in the right circumstances, couldn’t it at least be mitigation?
Which of the following would you read right immediately through on receipt: a) your employment contract, b) your tenancy contract with your landlord, c) the terms and conditions of your travel insurance? And tell me now which minimum statutory terms are supposedly implied into each of those contracts, but were ignored by the drafter in your own case.
All of us are bound, in other words, by a complex set of rules, of which most of us are ignorant most of the time. How then, can any of us meaningfully engage in a democracy, when the main parties are standing on programmes of legislative change. If you don’t know what the law is, how can you evaluate the programme each party is offering you?
*This is not an argument for diminishing democracy*, but for thinking about how we improve it. We have in power a generation of charlatans who will lie repeatedly about what they do. Take for example, Boris Johnson’s promise that his government will carry out a bonfire of workplace and environmental laws. At the last count, our servile press had reported that news story 9 times in the 3 years since he became leader of his party, each time treating it as a major development, honouring it with the papers’ front page. If you don’t want to be left gaping at the news, if you don’t want your friends to be in that position, we need both much more education about what the law is and – at a certain point – its simplification: fewer laws that do better at addressing such life-or-death issues as climate change.
The inevitable consequences of our over-abundance of law include: the existence of a specialist set of people (lawyers) who are expected to know the law when most people don’t. Law is costly, a fact about which radicals have been complaining for centuries.
In 1649, the year of King Charles’ execution, one Leveller John Warr, complained that “When the poor and oppressed want right, they meet with law, which (as [it] is managed) is their greater wrong … [T]he web of the law entertains the small flies and dismisseth the great.” He went on, “Why is our law a meander of intricacies, where a man must have contrary winds before he can arrive at his desired port?” The point I am inviting readers to consider, is that no matter how bad John Warr thought things were in 1649 they are much worse today; and that the gap between the purpose of laws and people’s general understanding of them has widened, to the point where it is no longer a river (“a meander”) but as wide as the sea.
Other metaphors are available. Senior Judges have called immigration law “abstruse”, “an impenetrable jungle,” or have likened the law to a “shanty town” (these are their words not mine: any reader should rage against the colonial subtext to them). Even the judge say there is too much law. And yet, every year, the complexity of immigration law grows.
One way to think about politics in Britain, America and Europe is to imagine that the left and the right have chosen to separate themselves along, of all weird and unexpected lines, a division between people who want more or less law. On the right, politicians who tell their audience that they will shrink the law and, in doing so, make the people happier. “We” will take back control. Better that we spent our own income, rather than have the state tax each of us and fritter the money away on harmful workplace and environmental laws.
Just one drawback with this wretched misunderstanding of politics is that the right never in fact delivers on the promise of fewer rules. A promise which helped to unite the Conservatives and Lib-Dem coalition was the pledge to reverse New Labour’s expansion of the criminal law. In office, the coalition legislated for 1,785 new criminal offences in five years. Or, if you want a more recent example of uncontrolled law-making think of the 425 Covid Regulations made by Boris Johnson’s government between March 2020 and April 2021. It was the greatest volume of extra-parliamentary law-making in the peacetime history of Britain.
If we see this process from the left, the wager of the future of what was once the workers’ movement on a politics which can imagine no greater hero than the policeman or the prison guard, suffers drawbacks of its own. The simplest one is that many people’s attitude towards the law is rightly antagonistic. Think for example of the crowd which formed in Glasgow in May 2021, when people realised that an immigration raid was taking place and a began chanting “These are our neighbours, let them go.” You might imagine a left made up of people who see themselves as “Mr Rules”. Or you might imagine a left constituted of the sorts of people who could be in the Glasgow crowd. It would require a politician of greater talent than anyone to be found on the frontbench of the Labour Party to satisfy both.
For much of the past five years, it has felt as if Britain is being fast-tracked to becoming one of those countries that we refer to euphemistically as a “managed democracy”, with a tame media and purged public institutions, like a mid-Atlantic Hungary. Preventing that fate requires an opposition culture with roots deep in civil society. It is right to feel outrage that, during Covid, our leaders insisted on making public safety rules which they had no belief in following themselves. The idea of a caste of leaders demanding sacrifices from the little people, while making no sacrifices themselves – that offends in the context of Covid, just as it offends when the families of the rich are permitted to raid the state for fake PPE contracts.
Somehow, we need to create a system where two, admittedly contradictory, things take place at once. The law should be tighter in its embrace of the rich, the powerful and the politicians. And, it needs to be looser in relation to the rule-breaking of the poor.
What socialists need to remember is that the true offence is not exactly breaking the rules. Rather it is the refusal to follow those minimum social norms which hold a *society* together. During Covid, hundreds of thousands died; but it could have been many more. What stopped those greater deaths was not the rules, but rather the understanding that the person who would catch Covid felt pain, just like you. It is that sense of basic solidarity which deserves protecting, not the rules which were only ever a means to an end.
I have been reading these letters printed in the Russian left press and written by Eleanor Marx and Edward Aveling.
Most friends will know the name Eleanor Marx as Karl’s daughter, a leading participant in the New Unionism struggles of the 1880 and 90s, mentor to the dockers’ leader WIll Thorne, executive member of the gas workers’ union, and a key link between the Socialist International and activists in Britain. Aveling was her partner, a secularist and then socialist, and one of the most regular platform speakers for various of the left groups of the time (including the SDF, the Socialist League and the ILP). Notoriously, he ended their fifteen year relationship, making a threat to her – its exact nature remains unknown but has been the subject of intense speculation – in response to which Eleanor died by suicide.
Her death was the most extraordinary comingling of the personal and the political. You see in one scandal, the first disillusionment of nascent social democracy, activists dealing with the phenomena of male violence, scandal, despair… Just to give one detail of it: the London-based socialist who made it his mission to expose Aveling was Edward Bernstein, who had already published the first of his “revisionist” articles which serve as a retrospective justification for the rightward shift of German social democracy, and serve as a distant paternal ancestor to New Labour, Starmer etc – in opposition to Aveling who is almost the epitome of the jaded revolutionary socialist prolonging his career when he would have served his ideals so much better by silence.
And in this context you have to remind yourself – beneath the politics, the squabbling and the egos, was something so much important – Aveling’s cruelty.
She was the greatest revolutionary of her age and – her partner betrayed her.
(There is a good biography of Eleanor Marx by Chushichi Tsuzuki, a superb biography of her by Yonne Kapp, and she is discussed at length in major essays by the likes of Sheila Rowbotham).
Anyway, this collection brings together seven long articles the couple wrote in 1895 – three years before Marx’s death.
They write about politics in London, the school board election, local government, new ideas in novels (Thomas Hardy) and drama, women writers, the stumbling efforts of the socialists to be heard. For people who care about early British socialist politics, the story of the left in London, this is essential reading.
Even for those who don’t, there’s so much of interest here. Reflecting the personalities of the two authors the prose is alternatively vivid and detailed, the stories of people resisting poverty; and it is pedantic, vague and opinionated.
The book explains why in Britain we hold our May Day march on a Saturday rather than the first of the month. Just as the day was taking off at the same time, in Europe, the US, and here – a generation of trade unionists worried about demanding too much, and the socialists who had the job of arguing back at them (ie. Aveling) did so with his characteristic strident, sectarian tone. That’s why the argument was lost. It’s all in here, the hopes of that generation and their defeats.
I tried to read it lightly, for the tone, for the laughter beneath a cloudy sky, for those passages which explain. Because that’s what Eleanor did – right up until the end.
The news of the death of Ray Hill (1939-2022), one time-fascist, later Searchlight mole, has left me thinking about ex-fascists, and how few see the journey through.
Among the failures, we can include Ewald Althans, one of the leaders of the Rostock riots in 1992, who was interviewed for television a documentary in 1993, supposedly to prove his determination to leave fascism behind, but in fact used the platform to deny the Holocaust, as a result of which he was convicted and jailed; Tommy Robinson, who quit the EDL in 2013, and briefly worker with the anti-extremism campaign Quilliam, only to re-join the far right and organise in 2018 the largest right-wing street protests Britain has ever seen; or Matthew Heimbach one of the organisers of the Unite the Right rally at Charlottesville in 2017, who claimed in spring 2021 to have renounced fascism, only to boast weeks later that he was proposing to relaunch his Traditionalist Workers Party.
But, in the case of Ray Hill, we find someone who had been a a leading fascist – only to admit he was wrong, and to see through the journey of undoing the harm he’d caused
A young man living in Leicester in the early 1960s, Hill was attracted to anti-immigration politics. He joined first the Racial Preservation Society, and then the British Movement. Between 1969 and 1979, Hill lived in South Africa, where he found himself slowly antagonised by the dominant values of apartheid and its radical insistence on the separation of black and white. A South African National Front had been founded and Hill was one of its leaders, but started passing information about it to local Jewish groups. He returned to England, met with researchers from the anti-fascist magazine, Searchlight, and agreed with their backing to join the British Movement. There, he encouraged a faction fight against the party leader Michael McLaughlin. Posing as a more serious Nazi than McLaughlin, the latter responded by expelling him. Hill then sued for readmission. McLaughlin tried to defeat him by pre-emptively closing down the organisation. Ray Hill waited 6 months before outing himself as an infiltrator.
The reason that Hill provides an interesting study in forgiveness is that he had not just been a mere rank-and-file follower of fascism, but an active National Socialist, election agent for Colin Jordan when he stood for Parliament in 1969 and won 4 percent of the vote, and Chairman of the National Front in South Africa, before rejecting its politics.
In 1988, Hill published a memoir, The Other Face of Terror. By far the most important anti-fascist voice mentioned in the text is Searchlight, who are mentioned on 50 of the book’s 315 pages. That magazine was founded in 1975, by two socialists Maurice Ludmer and Gerry Gable. Ludmer was the President of Birmingham Trades Council, of Jewish heritage and a former Communist, who in 1961 who had helped to found the Co-ordinating Committee Against Racial Discrimination (CCARD) which worked together with the Indian Workers; Association in opposing immigration controls and far right activity. Later, Ludmer was a member of the steering committee of the Anti-Nazi League. Gable was also Jewish, and had also been in the Young Communist League. In 1962 he became intelligence director of the Jewish and anti-fascist campaign, the 62 group, after which his politics best reflect that campaign itself, in which former Communists, people whose main political attachment was to Zionism, and pure anti-fascists mingled on equal terms.
Hill’s decision to leave England for South Africa was occasioned by an incident when he and other supporters of the British Movement had been in a Leicester café where they were spotted by anti-fascist students. A row broke out and the proprietor took the side of the students. Hill punched him on the nose, and was charged with assault and actual bodily harm. He and his wife then fled the country. Later, when he returned to England, he negotiated a deal under which the more serious charge was dropped, he pleaded guilty and received a suspended sentence. At a time of his life (i.e. 1980) when he was trying to reintegrate himself into far-right circles, his friends in nationalist circles assumed that the café owner must have been Jewish and that this was yet another instance of bad Jews harassing innocent racists. Hill played up to their fantasies, until the rumour became one in which he had launched a vicious, unprompted attack on a Jewish bystander, a story which did him no harm in posing as the incorrigible Nazi his new career as a mole required him to be.
In South Africa in 1979, at the height of his career as chairman of that country’s National Front, Hill watched with growing unease as his comrades leafleted the mixed district of Hillbrow in Johannesburg. Under apartheid, this had been classified a white suburb, but few whites actually wanted to live there, and a growing number of Indian families had moved in. The Front repeatedly leafleted the district, blaming “money-grabbing Zionist landlords” for the change. After one leafleting campaign, the apartheid police felt a need to take action, and began evicting Indian residents from their homes. Hill saw a family, thrown out of a house, their few possession tied up in baskets. He wanted to speak to them and apologise but could not. Ashamed by what he and his comrades had done, Hill approached “a couple of Jewish chaps,” who he had met previously at the Alberton races. They introduced on to “a leading figure in the Jewish community in Johannesburg”, to whom he passed lists of NF members, and plans for rallies, paving the way for his subsequent work as a mole in England.
In England, Hill’s contacts were initially with a man “Derek” working in Searchlight’s Birmingham office, with whom Hill shared a drink. By early 1981, Gable had replaced Derek as Hill’s main Searchlight contact. Witnessing racist attacks, Hill passed on the details of the perpetrators to the police, leaked to the press plans for a bomb attack on the Notting Hill Carnival, and gathered intelligence on secret Nazi gatherings.
His memoir is presented strictly through Hill’s eyes. We get only a relatively vague sense of how he seemed to those anti-fascists who were tasked with monitoring him. For Derek, we are told, the focus was on what Hill could do to help anti-fascists. Derek asked him what he thought of various fascists here, what would be the consequences of their success, how far he agreed with the Searchlight approach. Hill was promising to break all contacts with British politics; it was Derek, he explains, who encouraged him to become more active. Hill was treated not as a repentant fascist seeking redemption, but more like the sort of young friendly contact who makes an initial approach to an anti-fascist campaign. A handler was allocated to him, bit by bit he was turned into an identifier and an anti-fascist activist. There appears to have been no great awkwardness at the through of recruiting a leader of the far right; rather the question was approached practically – the act of intelligence gathering compelled anti-fascists to open up lines of dialogue to their wavering enemies.
“Think it over,” Derek said, “Why don’t you give me a call in a few days?”
Hill was being asked to submerge himself back into a milieu in which he would witness acts of violence, and should expect the threat of physical harm, whenever he was finally unmasked as an infiltrator, and yet his answer is a study in understatement: “You haven’t left me a lot of choice, have you?” Hill replied.