Law and Power: The Limits of Legality In the Struggle against Oppression

The most recent issue of Jacobin contains an interesting essay by Chase Madar, entitled Edward Snowden and the American Condition: Law and lawyers can’t save us from the creeping police state – but politics might. In it, Madar questions the tendency – both on the left and elsewhere – to couch opposition to the atrocities of the powerful in legalistic terms.

Overall, I share Madar’s views on the limitations of legalistic discourse, particularly his statement of what is wrong with making everything a matter of legality:

Our laws are not the miraculous embodiment of a transcendant morality. Legal philosopher Ronald Dworkin, who died earlier this year, was a giant and a genius, but we would do well to take a long sabbatical from his high-minded work in favour of his positivist opponent, H.L.A. Hart, for whom laws are the rules of the state, nothing more and nothing less […].

Quite. Laws – from municipal by-laws to the Geneva Conventions – are nothing but a product of the array of forces in a given society at a given time. Those who have the most power can make whatever laws they want, though countervailing forces may occasionally force them to make the odd concession. Because of this, they are constantly subject to change with little or no input from us. A notion of justice built on a foundation of law will be forever a moving target.

This point Madar supports by noting, with Martin Luther King, that many of the worst atrocities of our time are perfectly legal. And here, he goes awry. Madar is so quick to declare atrocities legal that he gets a number of them wrong, and, in so doing, weakens his own point:

‚Were the sanctions against Iraq, which killed hundreds of thousands, okay‘, Madar asks, ‚because they were in conformance [sic] with the UN charter [sic]?‘ Later on, he remarks that ‚Most of the horrors disclosed by WikiLeaks – like the slaughter in the Apache helicopter video – are also legally permissible according to the laws of war as they actually exist.‘

It is indeed, as Madar says, ‚an ugly tribute to the power of law and lawyers how many atrocities are legal‘, but the atrocities he specifically mentions were not legal.

Let us first turn to the ’sanctions‘ against Iraq. At the outset, it is important to keep in mind that the UN Charter is just one source of law that is applicable to the sort of economic warfare the US and UK visited on Iraq for twelve years. Examining the other relevant sources of law, we find that the deliberate denial of food and medicine to an entire civilian population for a period of years falls – at a minimum – under the headings of ‚wilful killing‘ and ‚wilfully causing great suffering‘, both of which fall under the heading of ‚grave breaches‘ of the 1949 Geneva Conventions, also known as crimes against humanity. They also fall within the definition of genocide set forth in art. 2(c) of the Genocide Convention: ‚Deliberately inflicting on the [national, ethnical, racial, or religious group] conditions of life calculated to bring about its physical destruction in whole or in part.‘  The UN Charter does not give the Security Council or, indeed, any UN body the authority to carry out crimes against humanity or acts of genocide. Indeed, this is the sort of conduct that will land you in the Hague, at least if you’re a dictator who has fallen into disfavour with Washington and Brussels.

Much the same can be said of Madar’s other example: the ‚Collateral Murder‘ slaughter of a group of Iraqi civilians, including two journalists, and several other Iraqi civilians who came to their rescue. Indeed, this massacre was doubly illegal. For one thing, it is illegal because it was committed in furtherance of a war of aggression, the ’supreme international crime‘, as it was called at Nuremberg. Under the UN Charter, which bans the use or threat of force in all but the limited, exceptional cases it enumerates itself, the US had no right to fire a single shot at anyone in Iraq, civilian or military. For another, it was an armed attack on noncombatants in a heavily populated civilian area of an (illegally) occupied country, in breach of multiple provisions of the Geneva Conventions.

It is certainly true, as Martin Luther King stated (and Madar quoted him as stating), that ‚everything Adolf Hitler did in Germany was ‚legal‘. Making it illegal was one of the central purposes of the changes to international law, and specifically international humanitarian law, following the Second World War.

Errors like these weaken Madar’s argument not so much because they’re wrong as a matter of law, but because they cause him to miss the opportunity to point out the true limitation on legalistic discourse, and legality itself, as a weapon in the struggle for global justice: The law only ever matters as and when it does not run counter to the interests of those who exercise real power in a society. Politicians and the capitalists they work for may flog the discourse of Law and Order to the rest of us, but to them, the law only matters as long as it doesn’t get in the way. It is real, material power, and not some abstract notion of legality, that determines what is permitted and what is proscribed.

The US government has regularly committed crimes strikingly similar to those for which they executed people at Tokyo and Nuremberg. Were any of the perpetrators of what Noam Chomsky has called ‚the crucifixion of Indochina‘ particularly concerned that they might get done for crimes against humanity? Do Bush and Cheney act like men who think that, any day now, they might be arrested and charged with several thousand counts of torture, including torture resulting in death (a capital offence under US federal law)? No, they not only confessed, but boasted of these crimes on national television. How many generals have been nicked for the Fallujah massacre, or the 2008-2009 US-Israeli massacre in Gaza, which was modelled on it?

Drug offences are serious business, as most of the record-breaking US prison population can tell you. But the executives at HSBC, which has been massively involved in money laundering to facilitate the illegal drug trade, won’t be joining them anytime soon. One of the various mini-scandals to erupt around in the context of the subprime mortgage debacle was the practice of ‚robo-signing‘, in which banks systematically forged quarryloads of documents in order to obtain foreclosures to which they were not legally entitled. We’re talking about probably hundreds of thousands of counts of forgery, perjury, fraud, and racketeering (forging the document is an offence, submitting it to a court is an additional offence, using it to obtain a thing of value is a separate offence, and setting up an organised scheme with a purpose of doing all of the above is yet another offence – for each document). And yet the only Wall Street criminal to go to jail in this entire debacle is Bernie Madoff, and only because he went on national television and confessed to the whole thing.

Moving away from criminality, the picture becomes even clearer. The First Amendment to the US Constitution has been on the books for over two centuries, but it took until the mid-20th century for freedom of speech to become the law of the land (and, thanks to Holder v HLP and Obama’s war on whistleblowers, it’s already on its way out again). The Thirteenth, Fourteenth, and Fifteenth Amendments – which were supposedly going to abolish slavery and racial discrimination – didn’t get in the way of lynching and Jim Crow. The Fifth Amendment’s Due Process Clause was polite enough not to get in the way of the Roosevelt administration’s decision to herd Japanese-Americans into squalid concentration camps.

It is a federal offence under US law to threaten a plant closure in order to intimidate workers out of forming a union. Employers do it all the time with no consequences. It’s illegal under the National Labor Relations Act to prevent employees discussing their pay and benefits with one another, and yet every employer I’ve ever worked with has had an explicit gag rule to prevent such discussions. Not one of them ever seemed particularly worried about legal consequences; most likely, they didn’t even know it was against the law because no one’s enforcing those laws.

Ever since the CIA-instigated coup in 1973, Chile has lived in a state of permanent illegality. First came an illegal, violent overthrow of an elected government by sworn officers of the Chilean military (in collusion with a hostile foreign power, no less). Then, the perpetrators of the coup unilaterally revoked the existing constitution, wrote a constitution of their own, and then imposed that constitution by means of a ‚plebiscite‘ in which no opposition was permitted. In the meantime, they sorted out their political opponents by torturing tens of thousands and murdering thousands. The popular uprisings of the 1980s got rid of Pinochet, but his illegal constitution and many of the ‚laws‘ that he enacted with no legal authority (including his ‚Terrorism Act‘, designed to deny fair trials to political opponents) remain in force, and have routinely been applied by successive ‚democratic‘ governments. There is literally not a single thing about the political structures of contemporary Chile that isn’t flagrantly illegal, not that that bothers those in charge much.

To say that law is of limited utility in the struggle for social justice would be a monumental understatement.

In Chile, there is more popular awareness of systemic illegality than in many places. One of the demands that has crystallised through the mass popular mobilisations for free education, indigenous rights, and against centralism is the demand for an asamblea constituyente, a constitutional assembly in which ordinary people would get together and work out what sort of constitution they want to live under, and replace the existing constitution with it. There have been two previous attempts to do this in Chile, both crushed by a mixture of force and guile that resulted in the constitutions that have actually been enacted in Chile. It has gained so much currency that, with the exception of the explicitly fascist parties, the candidates in the upcoming Chilean presidential election have been forced at least to provide lip service to the idea.

Let’s assume for a moment that people in the US (or anywhere else) were to do the same thing. Let’s suppose, for the sake of argument, that the vast majority of the population of the United States got together both locally and nationally, and hammered out a new constitution in accordance with their own interests and priorities. From the polling data of the past thirty years, it would likely be radically different to the existing constitution, and would probably include a right to free, public health care and education (occasional polls have shown a majority of the population actually thinks those things are in the current constitution), and at the very least a severe curtailment of the power of corporations and those who own them. Hell, let’s assume – why not – that the product of these deliberations was a determination that workers and communities should have at least as much say in how corporations are run as shareholders and managers (there’s more support for this than one might think).

Let’s assume that a majority of the people got together, deliberated, drafted this brilliant new constitution, and voted to enact it. And let’s further assume that that is all they had done up to that point, that the natural resources and means of production were in the same hands they’ve always been in, and that the military and police remained in possession of their weapons and had in no way repudiated their oath to serve the current regime.

Now, this hypothetical constitution, it bears remembering, would have a great deal more democratic legitimacy than the current one, which was imposed by force by a small, self-appointed clique of ‚men of better quality‘. From a legal standpoint, too, it would be no less legitimate than the current US Constitution. After all, no Act of Parliament authorised the southern half of British North America to enact its own constitution, much less declare independence from the realm. Under the laws in force at the time, these acts were just as illegal as our hypothetical constitution would be.

So the people have spoken, and written their own constitution. Does anyone think that that will resolve the issue? That the owners of the natural resources and means of production will happily turn them over to the people, or submit to whatever means of democratic accountability the hypothetical constitution prescribes? Does anyone think that the military and the police, both sworn to uphold the current regime, would simply lay down their arms or switch sides? Does anyone think, in short, that any part of the state-capitalist apparatus would willingly hand over power just because a bunch of ordinary people got together and put some nice ideas on paper?

Of course not, and so, the hypothetical constitution will not rise to the level of a bad joke as long as the people who enacted it don’t take their ideas out of the realm of legal abstraction and put them into practice by deposing those currently in power and physically wresting the weapons, factories, and means of production from their control. Actual power is decided in the material realm – who has what, and how much of it? – and not in the legal realm.

Now, the remarks above – and Madar’s article – concern the efficacy of the legal system as a means of realising social justice and holding the powerful to account. There is, however, another aspect of the matter to consider, not mentioned by Madar, namely the legitimacy of that legal system itself.

When I speak of legitimacy, the issues I refer to are roughly the following: Who decides what the law is? Who has input into the decision? Whose consent is sought before law becomes law? Whose views matter, and whose are disregarded? It is worth noting that, unlike the question of efficacy, which applies as much to law as we know it as it does to some hypothetical legal system not currently in existence, I am concerned here with the legal system as we know it.

And in the legal system as we know it, the law is nothing more nor less than a compendium of deals made by the powerful. This is just as true of international law (and speaking of legal atrocities, all those horrific ‚free trade agreements‘ are part of international law, too) as it is of most constitutions, as well as everything else all the way down to the regulations of the local planning authorities.

As for who has substantive input into the content of the law, the answer is: Very few people indeed. Even if we leave aside, for the moment, that vast majority of the law that was in existence before we were born, and thus was enacted before we could even theoretically have an opinion on the subject, the fact remains that most people are not asked for their views on what the law should be, and (as the polls consistently show), even when they express an opinion, that opinion is usually ignored. Liberal democratic ideology would tell us that laws and state power rely on ‚the consent of the governed‘, which, in the real world, amounts to saying that we consent by our very existence. The more sophisticated version is that we consent to the laws that are made by electing politicians, who then proceed to do whatever they (or their paymasters) want, in which case we are said to have consented to the laws by virtue of the fact that we put people in office who either told us nothing of their policies, or promise one thing, only to deliver something else. Even most campus police departments would consider this definition of consent a bit too broad.

The US Constitution, for example, is one of the most flagrantly illegitimate legal documents currently in force. It came into being when a self-appointed group of wealthy white men appointed themselves to draft a constitution in secret. The public wasn’t even allowed to hear what was being debated, let alone offer suggestions. Most of the population was excluded even from that threadbare excuse for political participation that is the vote. Women, making up roughly half of the population, were barred from voting. African-American slaves certainly didn’t have a say in the matter, and the indigenous population, of course, was excluded as well, as were even those white men who were insufficiently wealthy to share the founders‘ interest in protecting ‚the minority of the opulent‘. In short, virtually no one had a say in the matter.

International law is made by an equally small and unrepresentative group: heads of state, legislators, and diplomatic representatives of states. They get together in places where the public has no access, and certainly no opportunity to participate, and hammer out deals that reflect the interests of the most powerful segments of the society of the most powerful state at the table. True, there are exceptions, such as the requirements that amendments and addenda to the EU treaties be subject to referendum in Ireland and Portugal, but even there, popular participation is limited to deciding whether to ratify a fait accompli that most will have had no chance to read.

In short, none of this has the slightest legitimacy. As such, the notion that one can base one’s concept of social justice on existing law is just as nonsensical as the idea that we have a moral obligation to abide by the law simply because it is the law.

To some, these statements may seem at odds with many other things I have written, in which I have gone into great detail about the legalities – under international and national law – of all manner of atrocities. Why, indeed, would I have dedicated a substantial part of my life to the study of something I consider varying degrees of useless and illegitimate? Surely, it would be more consistent to utterly reject the use of questions of legality in political advocacy altogether.

Surveying the ex post facto legal framework by which the Nazi leadership were tried at Nuremberg, the chief prosecutor, US Justice Robert Jackson, remarked:

If certain acts of violation of treaties are crimes, they are crimes whether the United States does them or whether Germany does them. And we are not prepared to lay down the rule of criminal conduct against others which we would not be willing to have invoked against us. We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.

In the ensuing decades, the US, together with the other states that stood in judgment at Nuremberg, have committed countless violations of the Nuremberg Principles. Indeed, there is no real indication that they ever intended to live by them.

Law is certainly useless as an agent of social change, and there is scarcely a legal system in existence that meets elementary criteria of democratic legitimacy, but that does not make it entirely useless. In the loftier areas of law, the constitutions and the various human rights conventions, the powerful have laid down very clear standards to demonstrate that they are driven by great humanitarian ideals. Never mind that they never had any real intention of abiding by these principles: They pulled the pint, and it is only right and proper that they be made to drink it as well.

The constitutions and human rights conventions of the world allow us to show the present power structure as lacking not only by our standards, but by the standards the powerful themselves claim to hold dear. If those existing legal standards that are substantively just are not, and indeed cannot and will not be adhered to under the current state-capitalist system, it is certainly worthwhile to point that out.

Occasionally, one hears that it is improper to ‚cherry-pick international law‘ in advocating for justice and against oppression. Nonsense. We didn’t enact these standards, and we are under no obligation to accept any of them. There is nothing remotely illegitimate about pointing out that, say, the various ‚free-trade agreements‘ that abolish basic human rights and environmental protections and take power from nominally accountable governments, putting it in the hands of utterly unaccountable organisations, are unjust and should be disregarded, but that the Fourth Geneva Convention’s ban on establishing settlements in occupied territory should be upheld. The former promotes oppression, the latter purports to outlaw it. That distinction is not trivial, nor is it illegitimate.

In short, I think that the left needs to take a much more sophisticated, critical approach to questions of law, both in our analysis and in our advocacy. We need to be conscious of how we are using the law, and what the true standards are that underlie our determination that one legal principle should not be violated, and another should be abolished. There is nothing wrong with being selective, indeed, I would submit that we should be selective, but in being selective, we must not allow ourselves or others to believe that our position is legality for legality’s sake. We must call things by their true names: When we criticise illegality, what we are really criticising is injustice, oppression, violence, racism, imperialism, exploitation, or any number of other evils. Many on the left have long treated legality as a means rather than an end without necessarily being entirely conscious that they’re doing it, which often leads to sloppy analysis and easily countered advocacy. We must be fully conscious that legality is one tool or tactic, and learn to be deliberate in our deployment of it. In so doing, we will be much better able to articulate our own moral and ethical principles, rather than selectively applying principles announced, and subsequently ignored, by the very power structures we’re fighting against.

ADDENDUM (31.10.2013)

The perfect example of the uselessness of law against those with real power is the UN Security Council, which is essentially a private club for the richest states with the deadliest militaries.

The Security Council was created by the UN Charter, and it has no authority going beyond the very specific provisions set forth in the Charter. For example, nothing in the Charter allows the Security Council to amend the Charter itself, or, indeed, to void or amend any provision of any other treaty (a Security Council resolution ‚repealing‘ the Geneva Conventions, for example, would be invalid).

When it comes to the authorisation of the use of force, the Security Council does not have legal authority to authorise force as and when it wants, and for whatever purpose it wants. The purposes for which the Security Council may authorise military force are listed in the Charter itself. If the Security Council were, say, to authorise military force for the purpose of overthrowing a government and gaining access to natural resources, that would be completely illegal. The Security Council can only authorise force if force is only illegal for lack of Security Council authorisation. It cannot change the law to make illegal things legal; it is only authorised to enforce existing law. 

In other words, existing law does not give the Security Council a blank cheque to do whatever it wants; if its actions violate existing law, including the UN Charter, the Geneva Conventions, or some other source of law, they are illegal.

However, international law provides absolutely no means to hold the Security Council accountable. The General Assembly has no real authority at all, and certainly has no authority to sanction or remove Security Council members, or the Council as a whole, for violating the law. The international courts have no jurisdiction over the Security Council; indeed, existing law gives the Security Council a substantial degree of control over the courts within the UN system, particularly the International Criminal Court. As such, it is legally impossible to enforce international law against the Security Council, no matter how flagrantly they violate it. The law makes clear that the Security Council has limited authority, and is entirely capable of acting illegally (because it cannot make new law), but it provides no means of enforcement. 

Thus, the limits on Security Council authority turn out to be illusory (as does the Security Council’s authority the minute they refuse to authorise something the US really wants to do). In practice, the powerful states, particularly the most powerful states, acting through the Security Council, have carte blanche to violate the law as they see fit, and no one has the legal authority to do anything about it.