Notes on Freedom

Libertarian, humanist social theory, by Josie Appleton

Category: Hyperregulatory state

The corruption of punishment

There is a degree of corruption in Anglo-Saxon criminal justice which has not been seen for several centuries. Because the use of power is neither governed by law, nor by systematic elite interests, the door is left open for punishment to be driven by personal material interests of officials themselves.

The on-the-spot fine provides a base pecuniary motive to punishment. Some council departments now subsist in large part from their fines income, meaning that an environmental department issuing fines starts to have a private, parasitic interest, apart from the public interest of the local authority. The department becomes a private business with its own circular and self-interested economy: wardens go out to issue fines, to pay for more wardens, to go out and issue more fines. The fine is the way in which they earn their salary; they subsist from their power to punish.

(This is an extract from Officious – Rise of the Busybody State, by Josie Appleton)

Such local authority departments become interested not in the most serious offences but in those which can yield the most fines, which are generally the minor offences which are most common and easiest to catch (the very easiest to catch are the cases where the person does not know they are doing anything wrong). The fine is no longer a necessary form of punishment to encourage lawful behaviour: officials need to fine, and so need the offence, and if there are no offences they need to invent them in order that they can continue to issue fines.

Wardens start to engage in low-life practices, tailing or following people, hiding around corners, chasing or intimidating them. Their relationship to the public is one of overt hostility and economic parasitism. One warden described the situation: ‘We spent our time stalking people who were smoking cigarettes… we were filming them. I have seen colleagues chase behind people to issue tickets, go into shops after people and take them out… They [his employers] started pushing for any sort of ticket.’

This corrupt aspect is even more pronounced when councils employ private companies to fine on a commission basis, as around 46 UK councils currently do. When a council contracts these wardens they are basically calling in the mercenaries against their own residents. Perversely, the local authority often sees the number of fines as a question of ‘performance’, citing an increase in fines as an ‘improvement in performance’. The fine – a tax and drain upon the public – is transposed into a form of public service and a measure of state efficiency.

In the USA open-ended confiscation powers have been used to bring in the budget for police departments or to settle personal scores. Cases abound of people being stopped and in effect robbed by the police, with the officer seizing cash or valuables from a car in lieu of a court case. Paul Craig Roberts called this a new age of ‘robber barons’, bare-faced theft by the authorities which leaves property rights in a tenuous position.

What is significant is the base and erratic quality of this parasitic punishment. There have been previous societies in which elite corruption and rent-seeking were carried out in a systematic manner, such as systems of patronage or local pork-barrel politics. In these cases, payments were based on self-interest but they also regulated and contributed to social order. By contrast, the self-interest of officious punishment is privatised and random, working not to social order but to the anarchy of robber barons or pirates. In failed states power belongs to any man with a gun; in officious states power lies with any person with an official badge that endows the power to fine.

This has been shown by several instances of conmen posing as wardens. They wore fake uniforms and badges, watching the public for minor misdemeanours for which they issued a ‘fine’ and marched them to the cash machine. Councils and the private security company criticised this fraud, but the uncomfortable fact is that the conmen revealed the actual substance of their public service to be nothing more than private profiteering. The conmen’s actions were not substantially different in content or consequences to those of the authorised officers. In both cases, wardens were looking for people to fine in order to earn a salary. The criminal act showed the truth of state activity.

(This is an extract from Officious – Rise of the Busybody State, by Josie Appleton, Zero Books. I discussed this issue last night on BBC’s Panorama)

Kicking babies off trains: the heartlessness of proceduralism

 A much-shared video shows a woman carrying a baby being denied a seat by first-class train passengers. An elderly lady had her bag on a seat; the mother asked her to move; an argument ensued and the other passengers joined in.

What was striking about the exchange was the absence of any humane or civic lines of reasoning – as in, here is an empty seat, here is a woman with a baby who needs to sit in it.

Instead, the dispute pitted various formal rules and procedures against one another. Some passengers insisted on the santity of first-class: the woman didn’t have a first-class ticket, therefore no rights to the seat. Other passengers said that they heard the train’s first class had been ‘declassified’, which means the woman now did have a right to sit in the seat. Finally, the mother herself noted that it was a ‘priority seat’, reserved for groups such as mothers with young children.

The question of right or wrong – and of our obligations towards one another – appears as a competing series of procedural rules. People on a train are as bubbles, surrounded by a forcefield, and their relations are only made possible by the pecking orders handed down from above. These procedures are not something we have made, apparently – there is no intuitive sense of everyday ethics – but something handed down, written on the train walls or announced over the microphones.

To be ‘civic’ today is often to care disproportionately about the correct enforcement of the rules. It is not the case that everyone is just sitting there and ignoring each other: they are policing, watching, comparing each other’s behaviour with that specified. Even if it doesn’t affect you then there is an impulse to survey and insist that procedures are correctly followed.

This can mean that the majority of a train carriage (on a train to Brighton!) can shout at a woman with a baby to leave what had been an empty seat. The public sphere can be a hostile place; you do not know how people will behave. Mothers with young children was one of those groups intuitively helped out, assisted, but now any ‘special treatment’ is only condoned if specified. You do not have to give up your seat unless you are in a specially marked ‘priority seat’: only in these seats do babies have a (quasi-legal) ‘priority’ over others.

The video ends when a man offers to give up his seat for the mother. Such acts of assistance are no longer the enacting of general civic assumptions and normal forms of comportment. Instead it is strangely touching, personal; an act of personal kindness, one-to-one. It is a moment that breaks through the proceduralism that has become our hollow civic virtue.

From rights to privileges – the refeudalisation of the public sphere

In feudal society there was no such thing as a ‘right’, in the sense of a domain of autonomy held in principle by everyone. Any domain of autonomy was unique to a particular group, the result of their particular status or negotiations. The merchants of a city or a baron might hold certain ‘liberties’ – to elect a mayor, for example, or to export a particular item, be exempt from a tax, or levy toll duties. Feudal society was an intricate patchwork of immunities and benefits, all of which had the status of privileges, an allowance conferred by the grace of an over-lord or the king.

There is something feudal about the status of rights in contemporary society. It has become very difficult for groups or individuals to make a general claim for their rights as citizens, as allied in principle with those of other citizens. Instead, there has been a return to claiming rights only as a form of privilege.

The distinction between positive and negative rights – the classic freedom-from or freedom-to distinction – has been eclipsed. In many cases rights are seen as privileges, and vice versa. People talk about their ‘right to a quiet life’ or ‘right to self-esteem’, but then say that freedom of speech is ‘not a right’ but a ‘privilege’ or ‘responsibility’. In fact, these different claims have the same status, as a benefit conferred by some higher authority.

One of the ways one can defend interests today is by demanding special exemption from a restriction, on the basis of the special qualities or needs of your particular group. Musicians may claim that they should be exempt from entertainment licensing, for example, because of the particular value of music in social life. Or homeless organisations may seek to exempt rough sleeping from public space regulation, on the grounds of this group’s particular vulnerabilities or needs. For campaigners the pressures pushing you to pose your demand in these terms are very strong indeed: this is the existing way in which demands can be put and positions defended.

There is again a sense that one sphere of autonomy is exclusive of and set against those of others. This is why it is common for groups, in defending their own ‘rights’, to call for restrictions upon the rights of other groups. Big Issue sellers in Oxford supported the council’s ban on begging; local buskers supported a busking license because it benefits them over outsiders. Street traders often support leafleting licenses, as do institutions which are already prevented from leafleting as a result of their alcohol licenses.

In feudal times, if you had a right to export cloth, this in principle excluded others from carrying out this activity: a liberty was a monopoly. Now councils horse-trade over the use of public space in a similar way, as if one use were exclusive of other uses.

We are seeing the official micromanagement of public spaces as a patchwork of distinct and rival privileges. Woking Borough Council, for example, has divided up the town centre into a series of ‘event zones’, each with special allowances and restrictions for activities such as busking, leafleting or charity collecting. (The only activity allowed in all areas is ‘council events’: this is the right of the over-lord). So charity collection can take place in seven different zones, but a permit is required, and only one organisation with a maximum of four representatives can collect at any one time. Leafleting can occur in two locations, but is limited to one ‘booking’ a month.

There is no conception within this schema of any rights of free action in public space. Your realm of action exists only as sanctioned by authority, as licensed in some way. There are now licences for busking, leafleting, playing music, charity collecting, even for dancing: one can act only when one has a permission slip, and generally paid a fee. Your activity is not a right but a privilege, and a privilege explicitly set against the unauthorised group who are excluded from performing this action. A local musician will wave their ‘licensed busker’ card at an out-of-town musician who has just set up, showing their permission slip and so claiming their superior rights to use the space. In certain local authorities buskers must actually audition for council officials before receiving their licence.

And yet, the nature of these new privileges are quite different to those in feudal times. Feudal privileges represented fixed status divisions and customary rights, a hierarchical stratification which structured social relations from top to bottom. A particular licence was a recognition of the dues owing as a result of a person’s status as baron or churchman, or of past agreements or custom. By contrast, the pseudo-feudal divisions in today’s public sphere have an artificial quality. They are entirely contingent, constituted only through the whim of officialdom or the chance of circumstance.

There is a great difference between the status of different activities in official regulations, and their status in social life. There is no recognised Woking custom that leafleting should only happen once a month, or in certain areas of the town: Woking Borough council’s ‘public realm usage policy’ is a pristine invention of the realm of officialdom. The licensed busker takes on a status that is quite alien to their status among a public audience or fellow buskers: their position depends not on the quality of their music but on whether they have been compliant and jumped through the hoops. Therefore, the new realms of privilege are not a reflection of social reality, but an official construction laid upon it.

In this context, it is a progressive task to pose claims in terms of general rights, held by all people as citizens. In truth, homeless people have a right to use a bench, or buskers to set up in a spot, not because they are special but because they are citizens as much as anyone else; they have the same rights to use the space as anyone else. It is only by defending such general rights that the interests of groups could coincide, that the autonomy of one is also the autonomy of the other.

There is an objective potential for the uniting of different parts of civil society. The distinctive quality of state regulation today is that it is turned without exception against every part of social life. Public space regulations are not exclusively targeted at homeless people, buskers, or any other particular group, but against activities of almost any kind. War veterans must queue up with Greenpeace protesters to gain their ‘charity collection licence’; lost cat posters and nightclub adverts are equally prosecuted for unlicensed flyposting. The contemporary state has no favourites among the different sections of social life.

This suggests that there is a state-consciousness, already in existence. We dearly need a civil society consciousness to rise up in counter and opposition to these measures.

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