Notes on Freedom

Libertarian, humanist social theory, by Josie Appleton

French ‘state of emergency’: the irrationalities of arbitrary power

The thing that separates a gendarme with a tricolour on his shoulder from a militia member with a gun, is that the gendarme is supposed to represent the law.

The thing that separates a modern state like France from pre-modern or retrograde political authorities is that the French state is supposed to embody rational principles: it acts where necessary to preserve the state of liberty.

Now the French state is responding to a terrorist attack – the embodiement of irrational force – by extending the arbitrary powers of state authorities. As with America and Britain before it, the ‘security’ agenda in response to terrorism amounts to the extension of arbitrary powers as an end in itself.

There appears to be a notion that the more latitude given to police authorities – the more latitude to enact surveillance, to put electronic tags on people, to confine them to residences, to ban events – the safer everyone will be.

President Hollande’s declaration of a ‘state of emergency’ was a performance in reassurance, the gesture of asserting state authority. By extending powers he says: I am in charge, things are under control.

Yet all that has actually happened is that the administrative parts of the state have been unleashed to use their force as they please. For the next three months suspects can be confined to their homes by an administrative order, searches and raids can be carried out without legal authorisation, and local prefects have summary powers to restrict the movement of groups or particular individuals, banning local events or declaring curfews.

‘In another context, I would be the first to condemn such a proceedure’, said the socialist president of parliament’s legal commission. There were some murmurs of dissent but a general view that this was not the time for questioning or for argument. The vote on the enactment of the state of emergency was 551 votes for, 6 against, and one abstention. Such majorities achieved without debate indicate the rubber stamping of administrative edicts not the enacting of laws.

An article on the leftist magazine Rue.89 argued that this amounts to ‘legalisation of arbitrariness’, and noted that ‘state of emergency’ powers were used in the Algerian war to arrest thousands of supporters of Algerian independence and inter them in camps.

The Rue.89 article points out that Hollande’s law allows someone to be confined to their home on the basis of ‘serious reasons to think that their conduct constitutes a threat to security and public order’, a condition which is ‘much vaguer’ that the Algerian war version which targeted ‘activities’ rather than conduct. Which radical political protesters could not be targeted under these powers?

Indeed, a Le Monde investigation of some of the 118 people confined to their homes finds that one man’s fault lay mainly in the fact that he had twice driven a radical Islamic preacher to the airport. The man describes how 12 police officers arrived at his house and said: ‘We have something for you to sign.’ The documents seen by Le Monde included a mix of correct and incorrect facts about the person’s ‘connections’, but were mainly based on the simple assertion that the person represents a risk to national security and is intent on joining jihadist forces in Syria.

‘They are taking people randomly to make examples of them’, said one confined man. Another said ‘They didn’t have anything to write, they charged me for the sake of charging me, to be able to tell people, “look, we’re doing something”.’ The lawyers who accepted these unfavourable cases said that the reasons for confining people to residence were ‘often obscure, or indeed unfounded’, and that the ‘rush to punishment plunges us increasingly in a zone of non-droit where we risk conducting ourselves like our aggressors’.

Now there are parts of France where people live under curfew, or where demonstrations are banned (though some are going ahead in spite of the prohibition). Events that have been cancelled on mayoral order include Lyon’s Festival of Light and Nancy’s festivities of Saint Nicholas.

Yet the French state’s inability to prevent the Paris attacks appears to lie in the failed use of existing powers, rather than for want of new ones. Several newspapers have criticised intelligence agencies’ failure to pick up on movements of the key suspects – many of whom were known Islamic extremists, and not because they once drove an iman to the airport – and indeed authorities were tipped off by an Islamist in August that Abaaoud (the Paris ringleader) had asked him to ‘attack a concert hall’.

The pressures of today are not, in fact, those of the time of the Algerian war. There is no civil war or threat of a coup, and the powers of state are not threatened. Dealing with terrorist action falls within the normal domain of police function. Perhaps the police need different skills, or more resources, but their task remains one of normal police function and not dealing with a crisis of state. Therefore they can perform this task with the normal judicial equipment.

The French Declaration of the Rights of Man and of Citizens provides a ringing statement of the proper function of modern criminal law:

‘The law ought to prohibit only actions hurtful to society. What is not prohibited by the law, should not be hindered…No man should be accused, arrested, or held in confinement, except in cases determined by law… All who promote, solicit…or cause to be executed arbitrary orders, ought to be punished’.

Bien dit!

It is worth remembering that these controls upon state power do not only protect public liberty, but also guide state action towards effective ends. That is, legal protections exist not only to protect the public from arbitrary sanctions, but also to guide law enforcement down rational and effective lines. This applies for the pursuit of terrorists as much as for other areas of public service.

When 12 police officers are employed to deliver unsubstantiated accusations to an innocent person – who then has to report to the police station four times a day, taking their own and officers’ time – this represents the use of state force for a gesture, for the sake of it, which in fact distracts from the apprehension of terrorists or the routing of future attacks.

After Paris: the ultimate value of the free life

There is a single response to the Paris attacks which alone is positive and worthy of defence: the affirmation of the value of the free life.

The day after the attacks, people instinctively started to gather in Paris and in towns and cities across France. When asked why, they said ‘to do something, to be with other people’ but most of all, ‘to show them that we’re not afraid’. These demonstrations formed in spite of the prohibition on demonstrations: police asked people to disperse but many refused to go. In Toulouse, thousands of people gathered in the main square in open violation of this order.

People responded to the attack on a city crowd by forming as a city crowd. They responded to the terrorists’ attack on the ‘abominations and perversions’ of modern life, on music, drinking and football, by affirming and seeking out these pursuits.

These ordinary aspects of the free modern life took on a kind of glow and heroism. Parisians posted pictures of themselves drinking outside in cafes and bars under the hashtag ‘JeSuisEnTerrasse’. They sought out the bars of attacked areas as a matter of principle, ignoring the government’s request to only go out ‘if absolutely necessary’. People posted their memories of the Bataclan (MonPlusBeauSouvenirDuBataclan), affirming the glory of music and lights and crowds, while a Charlie Hebdo cartoonist did a series celebrating the Paris of ‘music! kisses! life! champagne and joy!.

Before the England-France football match, the French manager said that after the attacks it might seem that football is an inconsequential thing, unimportant, but that actually it has become vital. The Radio France commentator said that football is the pursuit of a passion, the development of a skill, and the public enjoyment of this: ‘We will continue to go out – to live – to play football’.

This assertion of the value of these things in defiance of the terrorists was also a rediscovering of their value, in a culture that is so often cynical about ‘freedom, modernity, etcetera’. Forms of free culture and association are so often seen as shallow, consumerist, anti-social, polluting: every well-formed political ideology of our age appears to be set against those people drinking in bars or dancing to music. The extreme attacks of the terrorists, their absolute distain, develops out of a thread of culture within the West itself.

The public response shows that the elements of a free life have a universal value which people are willing to fight for. They will go out to bars, concerts and football matches, even if this means to put themselves at risk. They state the value of these things and defend them. Charlie Hebdo will continue to critique and satirise, mocking Islamic extremists (‘fuck them, we have champagne’) along with everyone else, though they are under daily threat.

Most incredibly, such affirmation was found even among some of those directly affected by the attacks, as with the Radio France journalist whose wife was killed in the Bataclan. He wrote a much-shared Facebook post addressed to the terrorists: ‘You would like me to be scared, for me to look at my fellow citizens with a suspicious eye, for me to sacrifice my liberty for my security. Perdu’, he wrote, saying of his 17-month old son ‘all his life this little boy will – in affront to you – be happy and free’. He told Radio France that his wife had had ‘enormous eyes’ and their son was born ‘with both eyes wide open’: the value was in pursuing ‘the difficult path of reflection, of reason’, of living with one’s eyes open, choosing and thinking for oneself.

There is a scene in The Narrow Road to the Deep North where an Australian camp prisoner faces up to ‘the grim strength, the righteous obedience to codes of honour that showed no doubt’ of the camp guard, and ‘could find in himself no equivalent life force that might challenge it’.

People are finding an equivalent life force in free life. However, this public response was notably different in tenor to that of the French government. The French state – as well as being preoccupied with those highly necessary tasks of investigating the attacks, pursuing fugitives, arresting suspects – has also struck another line: the assertion of executive power almost as a point of principle. The immediate response to events was a series of restrictions, which included not only bans on demonstrations, orders to not go out, but also declaring a state of emergency which gives prefects (local representatives of the executive) powers to declare curfews and to ban any event. All school trips have been cancelled as an order of the ministry of education.

At a local level, mayors and prefectures have been imposing restrictions upon daily life. At my son’s school in South-West France there is now a large orange sign on the door, announcing that parents are no longer allowed to enter the school and children must be deposited at the external door. Many of these assertions of executive authority appear pointless, a gesture: a terrorist could push his way past the middle-aged classroom assistant, or indeed merely attack the class of 3-year olds lined up by the external door because their parents have not been allowed to take them to their classroom. In practice, the restrictions imposed ‘against the terrorists’ are being imposed against people trying to gather in the streets or parents trying to enter a school. They are blocking everyday associations and free ways of relating to one another.

Therefore, after Paris we should be for freedom and for the free life – staked against the terrorists, the anti-modern cynics, and pointless assertions of executive power.

The ‘trigger warning’ school of literary criticism

Why are ‘trigger warnings’ now stamped on everything from the Great Gatsby to Ovid?

The notion of being ‘triggered’ by a book or film is an extension of ideas of ‘offence’ or feeling ‘uncomfortable’. In all these cases, the individual’s encounter with a cultural product is experienced as somehow harming or impinging upon that person. The work or idea is experienced as hostile, corrosive of the self and their identity.

These new terms replace the idea of disagreement or critique, which formed the basis of people’s relationship to books or works of art in the classical public sphere. Each work was held at arm’s length, scrutinised and weighed, probed in all its elements. A disagreement was stated precisely: this work is incorrect or flawed for x or y reasons.

Now, a person’s disagreement with an argument or a book is experienced as an unravelling of the viewer. The dissonance between individual and work is experienced as an affliction: rather than probe the work, the individual is undone by it.

Over time, the nature of the harm supposedly inflicted by an artwork has become increasingly subjective, wordless, and automatic.

The idea of ‘offence’ came first. Offence still contains something of the idea of disagreement – the notion that a person’s specific opinion or belief has been contradicted – even if only in an emotive form. Then came ‘uncomfortable’, with students saying that a particular book or particular ideas made them feel uncomfortable. Uncomfortable is a more degraded form than offence, because it is inexpressive and purely subjective. When people say they feel uncomfortable they are expressing only the subjective feeling of being infringed or unsettled.

‘Triggering’ is the end point of this process. Here, the unravelling of the individual in an encounter is much more extreme. Being triggered is a form of total breakdown, like a panic attack or another point when the self is entirely undone. The ‘trigger’ is like a sudden attack, and the breakdown of the self is instant and automatic, like the firing of a gun or flicking a switch. ‘I suddenly and quite dramatically feel all-encompassing panic spread through my entire body’, said one woman, describing her experience of ‘being triggered’ (the passive verb form indicates the passive role that the individual is playing in relation to the object).

Trigger warnings began in relation to sexual assault victims on discussion sites, and have spread to every possible phobia (spiders, small holes), negative experience (violence, mental illness, self-harm), and then further to the content of opinions with which a person disagrees (sexism, ageism, homophobia, transphobia). In this process, trigger warnings moved from a specific context to the wider public sphere, to structure the way in which people engage with cultural products.

Sexual assaults and phobias have started to take on a general and metaphoric resonance, as being in some way emblematic of people’s encounters in the public sphere. Sexual assault becomes a metaphor for our encounter with books or films with which we disagree: we are being undone, violated in the most intimate manner.

The trigger warning moves beyond the subjective perspective of the person being triggered, and starts to become an actual system for organising cultural products and people’s relationship to them. Websites such as ‘thiscouldbetriggering’ or ‘whatsthetriggerwarning’ have begun the encyclopaedic project of organising the works of humanity according to their specific trauma-causing qualities.

Works are given tags, labels: the Great Gatsby gets ‘violence against women’ and ‘sexism’. A Streetcar Named Desire gets: domestic violence, suicide, homophobia, rape, statutory rape, and mental illness. The tendency over time is for these categories to escalate, and people are encouraged to write in suggesting new tags or new areas of cultural life to consider in this manner: Can you add a transphobia tag? Can you add ableism? Can you also do songs? The answer is always yes.

Therefore, with the trigger warning we see how the subjective feeling of offence, or discomfort, has been raised into a system in public life: it becomes a school of criticism, a way of systematically reading a work and categorising it. While the triggered person is undone, wordless, the author of the trigger warning is clinical and systematic. One US student had the perseverance to read the works of Ovid and count the number of sexual assaults: she clearly maintained her wherewithal throughout. People work their way through whole television series, or literary tomes, systematically allotting works their respective labels.

These trigger warning critics have the same indifferent clinical approach as a state board of film classification. Everybody recognises that the board of film classification tells you nothing about a film: the statement that a film ‘contains moderate nudity and extreme language’ is a category slapped by officials on the world of culture.

Trigger warnings, by contrast, are produced by the public itself, and become part of the way in which people engage with and categorise artworks. As a result, trigger warnings start to transform the meaning of a work; they are not seen as an external imposition, slapped on, but rather start to become a system that structures interpretation and evaluation.

A novel or film is tainted by its trigger warning in a way it was not by the Board of Film Classification. One novelist described how his reading of Lolita had been forever tainted by his literary professor’s statement that it ‘represented the systematic rape of a young girl’. A work he had looked to for inspiration was reduced to this single negative dimension. A work that ‘contains’ sexism or racism, as opposed to nudity or strong language, becomes subsumed by that negative judgement. In the novelists’ phrase, the trigger warning is a ‘pre-emptive defacement’. A novel or artwork becomes its label; it cannot be looked at in the same way again.

This ‘trigger warning’ school of literary criticism has the peculiar detachment of state censors, whose only concern in a love scene is the precise parts of the anatomy revealed. A book about slavery is found to ‘contain racism’, even if it ultimately is a condemnation of such oppression. The dimensions of the work are flattened out, so that an essentially humanist text can be turned into its opposite.

The trigger warning is a tag which dissuades people from encountering the art object. The warning is there so that you can leave the room, put down the book, turn off the television. Therefore, the individual need never undergo the experience of dissonance with an artwork; they need never encounter the things they find disturbing or the views with which they disagree. The trigger warning, as a system, becomes a guide through the world of culture, such that dissonance can be avoided.

The individual is defined by their tags, the specific elements in the world which undo them. Their exchange with the cultural world can be negotiated, such that clashing tags need never meet. People who are triggered often have friends who watch films for them, test them out, before they are declared safe to be viewed. They move through the world like a paranoid king who fears that every food item or gift contains poison and must be tested first.

The university professor Todd Gitlin criticised his students’ dislike of anything ‘uncomfortable’ and defended the importance of discomfort in teaching. It is the experience of dissonance which takes us out of ourselves, shocks us with another view, and so forms us; it is in the encounter with our contrary that we are developed. This is why negative experiences can often teach us more than positive ones. One psychiatrist argued that trigger warnings even go against treatment of genuine trauma and phobia: it is in repeatedly encountering the object of their fears that the person is reinforced, made self-sufficient, and eventually can face the world again.

The works of art and literature should be cleaned of these defacing warning signs – we must defend the free encounter between individual and artwork, and the developmental value of dissonance.

‘Gay cake’ wars and the eclipse of conscience

An Oregon baker has been ordered to pay $135,000 damages to a lesbian couple after refusing to bake a cake for their wedding. A Colorado bakery was ordered to fulfill gay wedding orders and to send its staff for sensitivity training. The ‘gay cake’ wars show the lamentable position into which the idea of conscience has fallen.

These cases are not about an actual conflict of interest: the couples could have found another baker who was happy to fulfill the order and attend the wedding with good heart. Instead, a battle of conscience is being sought where it could have been avoided, brushed over. One person is taking the case in order to force another to affirm their values or way of life.

Indeed, it appears that in some cases gay activists are searching out traditionalist bakers in order to ask them to bake wedding cakes. They had specifically chosen the bakery that they knew would not want to make the cake. In a similar spirit, Christians are seeking out liberal bakers to ask them to make cakes bearing slogans such as ‘God hates fags’, and going to court when they refuse. The cake becomes a means to make someone else voice your views; the case plays the role of the victory of one conscience over another.

These battles show how sorely we are missing the idea of conscience – one’s grounding in a private life or belief, and one’s respect for other people who are similarly grounded. When the idea of conscience emerged in the 17th century it was as an almost sacred faculty implanted by God. The one and only rule of ethics was: do not go against your conscience and do not violate the conscience of another. The primary value was sincerity, and your rights to free expression were derived from your duty to be sincere, to only say things you sincerely believed (1).

In the view of philosopher Pierre Bayle, it was not a sin to err, only to go against one’s conscience;  the ‘erring conscience’ had rights to respect and toleration as much as any other. The notion of conscience at heart implied a reciprocity, that ‘each could recognise in the other the sincerity of their convictions, even if the truth that he sustained differed from ours’ (2).

In these terms, belief was a largely private matter, something like one’s internal reckoning or inner relationship with God. When the formation of belief moved into the public sphere in the 18th century – with coffee shops, publications, salons – and people came together in discussion, these were independent consciences that were brought into dispute. The public culture brought together independent men and women, independent consciences, into reciprocal relation. The relation of argument or persuasion is one that respects this inner core: a person can be won only through reason, and of their own volition.

Now, this reciprocal relation has collapsed. There is at once a lack of respect for the conscience of the other, and a concomitant lack of grounding in oneself. This is why the refusal of a cake order is experienced as a violation or delegitimation of oneself. A man who had a pro-gay marriage cake refused in Northern Ireland said that this made him feel ‘unworthy, a lesser person’. The two Oregon women claimed 88 and 90 different forms of damage respectively, covering every aspect of their psychological and physical being, including: ‘acute loss of confidence’, ‘doubt,” ‘excessive sleep’, ‘felt mentally raped, dirty and shameful’, ‘high blood pressure’, ‘impaired digestion’, ‘loss of appetite’, ‘migraine headaches’, ‘pale and sick at home after work’, ‘resumption of smoking habit’, ‘shock’, ‘stunned’, ‘surprise’, ‘uncertainty’, ‘weight gain’ and ‘worry’.

If one is grounded in one’s own private values, then the encounter with alternative values does not lead to unraveling in this manner. There is no reason why the polite refusal of a cake order need make someone feel unworthy or shameful, or strike at the core of their being.

When a conscience lacks its own grounding, it is touchy and offended at every turn; it is also through overcoming opposing views that it seeks to ground itself. In forcing someone else to affirm your views or way of life – even, or especially, against their own beliefs – then your own values are apparently affirmed. By winning court cases against Christians, gay activists seek to establish the value of their way of life. The relation of mutual respect between independent consciences is transformed into a fight to the death, where one seemingly exists only through the violation of the other.

Yet in truth, the violation of the other turns – with all the justice of the dialectic – into the violation of the self. Ultimately, ‘gay cake’ cases strip these gay relations and weddings of their intrinsic meaning and value. By becoming the subject of a court case, these relations become a parody of themselves, just as a religion is emptied out when it is forced down the throats of heretics.

(By the same accounts, there is also a parody version of Christian marriage, defined against gay marriage: Christian marriage is not grounded in itself, but becomes not-gay-marriage, and defines itself by the question of the ‘compatibility of organs’ and the act of physical consummation. This may be the thing that separates it from gay marriage but it is an entirely brutalist account of the marital union which harks back to the primitive marriage ceremony, with the demonstration of blood on the sheets to the awaiting relatives. As Hegel wrote already in 1821 (3), modern marriage is primarily a ‘spiritual union’, and the physical or ‘natural character’ is downgraded.)

The demand that gay relations or families be universally celebrated is just as distorting of these relations as any criticism. The value of a family – gay or straight, single parent or step-parent, religious or secular or hippy – is that it is a private life-world, founded in the bonds among the members and their friends and extended family. The couple or family does not have to justify itself to society at large, nor does it require universal affirmation for its existence.

The principles of tolerance and formal respect in public life allow different people to pursue very different paths, yet to mutually respect one another. The urbanist Jane Jacobs argues that discretion is essential for public civility. She describes how people would leave their keys with a particular Deli owner for friends borrowing their flat: the deli owner owner combined a ‘feeling of good will with a feeling of no personal responsibility about our private affairs’. He did not judge who they had chosen to lend their flat to, and they did not ask for his approval. Mutual respect requires a certain formal distance, an understanding that people have their own lives to lead that are nobody else’s business.

Public coexistence requires a certain discretion and not forcing the issue. If a Jew cannot work a Friday night, or a Muslim cannot eat sausages, then they require neither condemnation nor enthusiastic affirmation, but merely an accommodation of their private position. It requires a certain tact and avoiding of conflict: this is how very different belief systems can coexist harmoniously.

Such formal respect is as vital to the freedom and equality of gays as it is to other groups. We should halt these absurd battles over the icing of confectionery – live our own lives, and allow others to live theirs.

(1) La Tolerance, Julie Saada-Gendron, Flammarion, Paris, 1999

(2) La Tolerance, Julie Saada-Gendron, Flammarion, Paris, 1999

(3) The Philosophy of Right, OUP, 2008

(4) The Life and Death of Great American Cities, Jane Jacobs, p78

Twitter storms: the terroristic destruction of the individual

The twitter storm is driven by a similar spirit to Isis’ destruction of ancient monuments. Both pretend to have a principled motivation, but this is just a guise: the actual content is only the drive to destroy, to bring something hallowed low.

The life of an individual such as Nobel laureate Tim Hunt took time and work to build, with an accretion over the years of discoveries, achievements, reputation. A person’s life is just as much a work as an ancient monument. A twitter storm or scandal drives towards the destruction a person, for them to be  – in Hunt’s words – ‘finished’, ‘toxic’. To lose their jobs, their honours, ideally their family and friends.

This has an element of sport, and is often discussed as such. Tim Hunt’s casting out from University College London was heralded as a ‘moment to saviour’. A previous storm targeting PR executive Justine Sacco was described as the best moment of 2013: people stayed up to see the conclusion, they skipped parties and dates. ‘I was piling on for sport’, said one of Slate’s writers, reflecting on his reasons for joining another ‘outrage-fueled pig pile’. This is the human drama of a person being ruined.

What is striking is that the person is not generally being ruined for what they believed, or for a deliberate action, but for a joke, aside or an innuendo: it is the informal moment that is the focus for the storm. It is notable that ‘racist’ or ‘sexist’ twitter storms tend to target individuals who are not actually racist or sexist.

There would be no sport in targeting the actual racists or the actual outcasts. Part of the frisson is the fact that this person is unsuspecting: that their life is turned upside down suddenly, without warning, and they do not really know why. There is sporting tension in the dissonance between how they might see themselves, and how they are now being seen by others. Hence the hashtag #hasjustinelandedyet, which trended across the world after Sacco made a joke about AIDS then boarded a 13-hour flight to South Africa. The crowd had this insight over her, that she was ruined and did not yet know it, and the moment of her realisation was savoured as a climax, a clash of drums.

The victim of such events cannot sit back like a ruined hero at the end of a Greek tragedy and say ‘the fault was mine’. This person is not bearing the consequences of their beliefs, standing and falling on ideas that are actually in conflict with society as a whole.

The individual targeted in a twitter storm was condemned not by their actions, but by the image of themselves that had been created in the storm. Their actual life, their actual opinions or beliefs are of no interest or consequence. The storm can turn black into white and white into black, and indeed this is part of the power at play.

There was a case of a woman complaining about bongos who was the subject of tweets accusing her of being a white yuppie moaning about black people. She said that she was black and the bongo player was white. The response was  ‘I don’t know whether you are white or not’;‘forever publicly shamed on Twitter LOL … #whitetears.’ For the purposes of twitter she had been made white, because that is what she needed to be.

Individuals here are only a vehicle for the negative mobilisation. They are human material against which others are defining themselves: it is not about them, but about the needs and perspective of the storm. This is why any attempt at self-justification will make matters worse. ‘Just don’t engage’, one former victim of a storm advised another: be ‘an inert bundle of molecules’. Anything you say will be a sign of life, and therefore an incitement: you aren’t dead yet?

The subject matter of a twitter storm doesn’t make sense before the storm has begun, when there is puzzlement, or after, when there is regret. There is a regular cycle of stages. It is only in the moment of somebody being destroyed that the matter takes on its particular frame. Before and after, a lame joke is just a lame joke. Only in the eye of the storm does it take on this question of grand principle and provide the focus for such unleashing of negative energies.

The dynamic of the storm is a moment of collective mobilisation, an expression of collective subjectivity, at a time when more grounded forms of political mobilisation have gone. The collective cannot any longer be constituted positively, substantively, towards any particular positive end. Instead, it is constituted only at the point of the annihilation of an individual. This is how people stake a point of principle and are part of making something happen.

The collective exists only in the moment when a person is being ruined, just as the terrorists’ Islamic principle exists only at the moment when the columns are crashing down.

University College London’s behaviour in the Tim Hunt scandal was indicative: the university cut him loose with a decisive swipe. He was toxic and the institution didn’t hesitate to remove itself from any implication or contamination. Strikingly, when Sacco’s media company sacked her, the company nonetheless said something in her defence: ‘We hope, however, that time and action, and the forgiving human spirit, will not result in the wholesale condemnation of an individual who we have otherwise known to be a decent person at core.’ The company made the distinction between the person they knew, and the person created as the projection of public outrage. What institutions universities have become, what hollow machines, to show less solidarity towards their Nobel laureate than a media company does towards one of its own.

The same patterns have long been seen in newspaper scandals, where it is also the case that the further the fall, the better the sport. Hence the delight at government ministers brought down for misdemeanors such as speeding points and rows with police officers. ‘The man who fell to earth’, read the headlines after cabinet minister Chris Huhne was convicted of passing on speeding points to his wife. The drive of a scandal is to bring the mighty low, the mask crashing to the floor.

When acts of destruction provide the confirmation of the self and collective, this leads to a new barbarism. It was this barbarian-narcissist culture that, watching a man landing a probe on a comet, focused on the fact that he had scantily dressed women on his shirt. The scientist was humbled by the reaction, reduced to tears. A man is landing a probe on a comet and he is made to cry because of the shirt he is wearing.

When the individual is reduced to human material for others, things of substantial and lasting value are cast away as if they were nothing. Immunology is sacrificed on a joke, meteorology on a shirt. We may look on with horror at Isis’ exploding columns, but really this isn’t a world away.

Why Magna Carta should still be our constitution

The distinctive thing about Magna Carta is that it is a constitution owned by society rather than the state.

That is, the meaning of Magna Carta is not stamped in official parchment and interpreted by the courts, who then say, you have this right or you don’t. Rather, since the seventeenth century Magna Carta has been something for people to pick up and wield to their own purposes, against state authority. In the Civil War a person being arrested by the king’s agents would carry or read aloud from the charter, as if the document in itself had the power to ward off illegitimate authority. Magna Carta provided a point of authority outside the state from which to appeal.

Magna Carta became a modern constitution when the feudal rights and duties described in the text had long since dissolved: when there was no longer scutage, castle guard, reliefs upon the knighting of your eldest son or inheriting an estate. In the thirteenth century, Magna Carta was a precise legal document: the text stated exactly what was owed by the various categories of vassals to their lords. With the dissolving of these feudal relations, the clauses that affirmed the principle of limited power in the application of feudal law took on the broader significance of the protection of the citizen against state authority.

Now, Magna Carta played the role not so much of a legal document as an allegory. The allegory of Magna Carta is quite different to that of other constitutions and accounts of the founding of states, such as a founder-hero giving the people good laws, or a group of citizens sitting down and agreeing to form a state on certain terms. Magna Carta was a deal extracted, with the barons and knights camped as an occupying army and the king escaping every night to sleep in safety elsewhere. State authority was forced to agree terms and limit itself.

The rationality of any claim invoking Magna Carta lay not in legal reasoning, but the social legitimacy of the claim. The question was not whether the text could actually be proven to have x or y reasoning, or whether learned judges or antiquarians found this to be so. The force of a claim invoking Magna Carta lay in the individual’s certainty and assertion of their rights, and in the crowds following behind in support.

This is why Civil War rebel John Lilburne quoted Magna Carta first against the king, then later against parliament; why it could be used by both the suffragettes and colonies demanding independence. The meaning of the text was grounded in the subjectivity of civil society: it was civil society that provided the content for the legal form.

It is for this reason that Magna Carta has now vanished so completely from social and political life. While the constitutions of France or the USA continue to have a juridical-administrative life, and structure fundamental aspects of social life, Magna Carta has vanished without trace. It is no longer quoted or invoked.

Magna Carta has disappeared because civil society has ceased to defend itself against the state. There is no longer that sense of tension between state authorities and citizens; there is no longer a principled separation of domains, or the notion that the use of coercion is an incursion on a prior realm of freedom, and must be subject to very strict conditions.

Our new constitution – the Human Rights Act – has emerged as a reflection of this predicament. This is the antithesis of Magna Carta: in its origins it is not the assertion of society against the state, but the pure legalism of an act of international diplomacy.

The Human Rights Act is a statement of rights which seems to come entirely from without, from elsewhere. Nobody thinks of themselves as having a ‘right to life’ or ‘right to a family life’. The language is odd, foreign, not because it is not British but because it is abstracted from the categories and relations of social life, the points of actual tension between individuals and the state. When you read a human rights judgement it feels as if you have never experienced this thing that is being spoken about.

The fact that rights are now conceived largely in terms of this document shows that the question of the limits on state power is now decided entirely within the terms of the state. The question of the division of the domains of state and society occurs entirely within the formal-legal sphere, as with the negotiation between government departments. Those who wish to challenge a measure must do so on these terms and in this language.

Bringing a case under the Human Rights Act is rather like going to see an oracle: you are not asserting a right but going on bended knee, to ask whether you do indeed have this right. Has one of the articles been infringed? The judgement reads like an occult revelation, as something secret revealed. The QC or judge has gone off to consult the sacred texts and they have found that, yes, rights have been infringed, or no, they have not.

Whether they rule in your favour or not, the action has confirmed your subject status. The ‘rights’ being given in a Human Rights case victory are not something claimed, in one’s own voice, but rather are a revealed gift. The judge may say, yes, this police search was an infringement of your ‘right to privacy’, but this judgement is not a concrete recognition of the private domain of your home; your freedom is given back to you as something else.

With Magna Carta, a legal document became the allegory for civil society. With the Human Rights Act, civil society becomes the allegory of a legal document: society’s own autonomy, its own sphere, is sold back to it in an estranged, foreign form. The question of the legitimate domain of state power is now owned entirely by the state alone.

This is why people’s rights can be violated, without their ‘human rights’ being touched. A mother who had her child forcibly adopted is found to not have had her ‘right to a family life’ infringed; the Scottish government’s appointing of a ‘state parent’ for every child is not, apparently, an infringement of their ‘right to privacy’; buskers’ right to ‘free expression’ is not affected by the requirement that they buy a licence from the council before playing in the streets.

At the same time, human rights are commonly seen as a means to defend the undeserving and dubious: reflected in stories that a criminal claimed to have a ‘human right’ to KFC, or a prisoner to hard-core pornography.

It is notable that the invoking of ‘human rights’ tends to have the opposite effect to that of invoking Magna Carta in the past: rather than endowing the claim with authority, it seems to delegitimise it. If someone mentions human rights people tend to see it as an effete and irrelevant claim. If a person says, ‘an infringement of my human rights’, people groan; they immediately lose sympathy. Those seeking to use the Human Rights Act have to spend a lot of time defending it from negative public perceptions. It is unusual for bills of rights to have to be defended against the public.

In the period ahead, what is needed is not so much a new code, or more legal cases, but a development of the conflicts that are presenting themselves between social life and the state. Every skirmish between civil society and the state – whether it is buskers defending their right to play in public space, or skateboarders their rights to skate in a park – does something to re-establish the autonomy of the realms, and the principle of limited power. If we have a document in our hands then let it be Magna Carta.

Extremism Disruption Orders: state officials become outlaws

For centuries, kings’ coronation oaths included a pledge to serve justice and maintain the laws. Indeed, the English state was unified by law: England formed as a country not through the spread of state administrators, but through the spread of a legal jurisdiction (1). The growth of national courts from the 12th century – overtaking private feudal jurisdictions – was the result of their ability to deliver speedy and fair resolutions to injustices and disputes. England was one country under one law; the authority of the state stood on the fact that it represented the law.

We are now in the unique position where law proper plays a vanishing role in the uses of state power. Officials today seek to escape legal rules specifying the course of action in any particular case; they no longer even claim to be ‘representing the law’.

We see this most clearly with the growth of summary powers to issue ‘orders’. The prime minister recently argued that ‘extremism disruption orders’ were necessary to ‘bring our country together’: for too long, he said, the government had told citizens ‘as long as you obey the law, we will leave you alone’.

Extremism disruption orders would allow for coercion to be exercised outside the application of the law. A person could be prohibited from broadcasting and would have to seek police approval before posting on social media. It would be a crime to violate the order, even if their publishing were entirely anodyne.

This is the latest in a long list of powers to order, including: Football Banning Orders, Dispersal Orders, Control Orders, Anti-Social Behaviour Orders, Community Protection Orders, Public Spaces Protection Orders, Designated Public Place Orders, Eviction Orders, Closure Orders….

In these terms, the state doesn’t specify a rule; it doesn’t lay out a domain of prohibited activity, or specify procedures for the resolution of conflict. Instead, it makes it a crime to disobey the specific order of a specific official. It makes the official’s word in itself the law.

It henceforth becomes a crime to go to a football match (if one has been issued with a football banning order), to stand in a public place (if issued with a dispersal order), to enter one’s own house if that house has been subject to a closure order. The use of coercion loses any systematic basis, but is simply whatever officials find to be expedient in a particular case.

Officials are gaining the power to issue precise on-the-spot directions to individuals. In Newquay the council is issuing buskers with ‘community protection orders’, which can impose certain limits on the busker as the official believes to be necessary. This could be ‘you must not play in the town of Newquay’, or ‘you must not use amplification’, or ‘you must not play for more than an hour in the same spot’. It will then be a crime for that person to violate this specific direction of their musical activity.

Some of these orders go through a court, some do not, but this distinction is not great because the condition being tested is not the relation of this case to a defined body of rules, but rather whether the order meets the conditions under which an order can be made. Normally, a power can be invoked on the basis of authorities’ ‘suspicion’ or ‘belief’ that somebody’s behaviour ‘may lead to’ or ‘may be associated with’ some condition such as ‘harrassment, alarm or distress’; or that the order is necessary ‘in order to prevent’ or ‘reduce the likelihood of’ these things occurring.

The role of the court, then, is not to enforce the law, but to establish the conditions under which officials can make up the law.

This represents a fundamental constitutional shift. AV Dicey argued that the difference between English and French law was not that English law was more lenient, but that it was more predictable: it was defined by the ‘rule of law’ (2). The ‘rule of law’ precluded arbitrary actions on the part of officials. The law specified certain crimes, and anything outside of these specific areas was allowed. If officials were to use their powers in ways unspecified by the law, then it was they who were the criminals: they could be sued for trespass or theft in the ordinary courts.

Indeed, the current disdain for legal principle disrupts the very basis of a modern state. The sociologist Max Weber argued that the ‘calculability of the functioning of the coercive machinery’ is one of the essential conditions for the development of a modern state and market economy (3). Yet now, the rules can be changed overnight: people wake up and there is a new crime.

Suddenly it is a crime to sleep rough on the streets of Hackney, after the council passed a ‘public spaces protection order’ prohibiting this and a host of other activities such as ‘loitering’. This order appears like a revelation: there was no public consultation or prior discussion, and the exact text of the order appears only towards the back of a Hackney council magazine.

Councils including Lincoln have passed public spaces protection orders prohibiting ‘legal highs’; nightclubs and private homes are issued with closure orders on the basis of disorder ‘associated’ with the premises. In other areas, councils have banned the sale of high-strength alcohol or certain brands of alcohol, leading to losses of hundreds of thousands of pounds for small retailers.

Here, somebody has set up a business or purchased stock on the basis of a certain legal state of affairs. Overnight, they find their shop closed because an official has decided that their activities have or might lead to anti-social behaviour in the vicinity.

You might say: they are just legal highs; this person was a nuisance to their neighbours. But this is important. These are legal highs, they are within the domain of permitted activity, so a person sets up a business and invests money. Within weeks, the council declares this activity illegal. Worse, it threatened one shop with a ‘closure order’ before it passed the ban, and issued another shop with a Community Protection Notice before the ban came into force.

The council says that the shop or nightclub is ‘anti-social’ and fostering disorder, but in this case it is the legal high seller who represents the principle of the law, and the council who represents the principle of disorder and arbitrary will.

The enforcement of the law through the prosecution of a criminal returns social life to an axis: it affirms the fundamental principles of the operation of social life. The application of an order disrupts the idea of orderliness: it states that the only rule is the contingent, arbitrary will of officialdom.

These summary orders make it difficult to organise your affairs, because you do not know what you can do and what you cannot. More fundamentally, they make the question of right and wrong entirely contingent and based on arbitrary will.

A raid on a legal high shop or nightclub is not just an infringement against that individual, it is an assault on the whole idea of law in state and society. This is far more disruptive and fostering of chaos than any shop or club ever was.

Footnotes:

(1) The French state was unified through administration – through a central state administrator in every region – while the English state was unified much earlier through the development of a common legal system. (The State and the Rule of Law, Blandine Kriegel, Princeton UP, 1995.)

(2) AV Dicey, Introduction to the Study of The Law of the Constitution

(3) Max Weber On Law In Economy and Society, HUP, 1954, p72

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