Breaking news from LinkedIn:
(Apologies to Charlie and Campbell.)
Breaking news from LinkedIn:
(Apologies to Charlie and Campbell.)
Partly pre-empting my next post – which is going to start with a bit of post-dormancy navel-gazing about what I’ve been doing while I haven’t been blogging – here’s a Web site I’ve just set up:
It’s for my book More work! Less pay!, which is out very shortly. It’s coming out in a prohibitively expensive academic hardback edition, unfortunately. Hopefully, if it gets a bit of buzz behind it, the university libraries of the world will get through that edition and I’ll be able to push for a paperback.
The Web site includes links to the publisher and to Amazon, a link to Henry’s review on Crooked Timber, an excerpt from the Preface and the book’s table of contents; taken together, they should tell you all you need to know about what the book’s about.
Or almost all. There’s also a ‘Q&A’ link
, which currently goes nowhere much. Qs which I’m intending to A on the site include
What’s with the title?
What’s with the cover?
What’s this got to do with the Decent Left and the government’s Preventing Violent Extremism programme?
All other suggestions are welcome.
Also welcome is publicity from any bloggers reading this who have bigger audiences than mine (which probably means all of you). If you’re interested, the front cover can be seen in greater detail here.
It’s out! It’s actually, physically available! I’ve held it in my hands (just now, in fact) and can confirm that it’s a lovely piece of work; I haven’t spotted any errors yet, and the cover design works really well. Coming soon, I hope, to a library or a conference or a book reviews section – and possibly even a bookshop – near you.
Oh well – I’m back, probably.
What’s been happening? Looking back at the last two posts, both those papers got rejected; in one case it was more of a “revise and resubmit”, so I’m not particularly distressed. The other was more of a “hit the back wall without bouncing” rejection, which did stop me in my tracks for a bit – but I’ll get a resubmission out of it. And my book is almost out, and almost has its own Web page (a holding page as I write this, but I’m going to fix that RSN).
I was going to kick this blog back into life with a few thoughts on blogging, or a political meme that drifted past in the summer, or some thoughts on the mainstreaming of Fascism, or possibly even my long-planned post on the ethics of armed struggle. (Armed struggle: I’m agin it.) Instead of which, I’m going down that time-honoured route to a blog post, the comment that got too long for the comment box. Sparked off by something on Daniel’s site, which has an odd sort of big-fleas-little-fleas appropriateness about it.
First off, how about a bit of Tronti? (Borrowed from my book, which is out soon.)
Capitalist society has its laws of development: they have been formulated by economists, applied by governments and endured by the workers. But who will discover the laws of development of the working class? … We ourselves have put capitalist development first, workers’ struggles second. This is wrong. We need to reverse the problem, change its sign, begin from first principles: and the first principle is the struggle of the working class. Where capital is developed on the social scale, capitalist development is subordinate to workers’ struggles: it follows on from them and has to shape the political mechanisms of its own production accordingly.
Mario Tronti (1964), “Lenin in England”
More generally – Tronti and the workerists argued – capitalist development is parasitic on workers’ intelligence and creativity, which they use in the refusal of work. You get the job done with half an hour to spare and sneak off for a fag; your employer cuts your working day by half an hour and cuts your pay accordingly. Result: profit. You do eight hours’ work in six hours; your employer increases your workload by 33%. Result: profit.
And so to Thomas Friedman.
we need to understand that it is not only our financial system that needs a reboot and an upgrade, but also our public [i.e. state] school system. Otherwise, the jobless recovery won’t be just a passing phase, but our future.
[the] problem will be reversed only when the decline in worker competitiveness reverses — when we create enough new jobs and educated workers that are worth, say, $40-an-hour compared with the global alternatives. If we don’t, there’s no telling how “jobless” this recovery will be.
Those who are waiting for this recession to end so someone can again hand them work could have a long wait. Those with the imagination to make themselves untouchables — to invent smarter ways to do old jobs, energy-saving ways to provide new services, new ways to attract old customers or new ways to combine existing technologies — will thrive. Therefore, we not only need a higher percentage of our kids graduating from high school and college — more education — but we need more of them with the right education.
For a start, the “untouchable” theme is a striking example of Friedman’s legendary tin ear. To use “untouchable”, as a noun, to refer to people at the top of the heap – people who will thrive while the rest of us struggle – is bizarrely insensitive. To do so when what we’re struggling against is competition from low-wage countries, like, say, India – ugh. Brane hertz.
The “work-smarter-not-harder” stuff in the last paragraph quoted above is pretty insulting, too – at least, it is for those of us who have been hearing it from management gurus, year in and year out, ever since the last recession. The sermon changes from year to year – sometimes there’s just no money around; sometimes there’s lots of money but lots of people competing for it; sometimes it’s neither of the above but the world is changing! – but the message is always the same. There’s always some compelling reason why we’ve got to invent smarter ways to do old jobs, energy-saving ways to provide new services, new ways to achieve this and save money on that. We can’t just get on with our jobs – that would be wrong. (More to the point, it would mean we didn’t generate more profit than we did last year. See Tronti.)
But Friedman has something more specific to say here. Something that goes roughly like this:
“Only a minority of American workers are doing well out of globalisation – everyone else is getting shafted! As nobody could possibly have predicted (except for everybody but me)! So we need to move all American workers into that minority! And the key to that is education, government-provided education in particular! And what we need to do to government-provided education is, oh, damn, time’s up.”
I was particularly struck by the line about the $40-an-hour jobs. He’s literally proposing to fix the problem at the margin – by moving everyone who’s being affected by global competition into the margin of jobs so skill-intensive, and skills so specialised, that they can’t be done for less than $40/hour. Because if they could be done cheaper they would be, and if they’re done cheaper on the other side of the world, hey, them’s the breaks.
In The age of insecurity, Larry Elliott and Dan Atkinson liken globalisation to a strong wind – a conventional enough image these days. They then say that the anti-protectionist orthodoxy is a bit like saying we should deal with this strong wind by opening all our doors and knocking down walls where possible. (That wind is out there whether we like it or not! It’s a fact of life! It’s the way the world is!) Friedman has been urging on a process which other people said should be resisted or slowed down, because it would lead to disruption and immiseration on a large scale. He’s now claiming that it has led to large-scale disruption and immiseration – and his only solution is for the 80% to clamber on board the 20%’s lifeboat. And if that doesn’t work, well, it’s probably the fault of the government.
I’ve written another paper (hence the no blogging). No prizes for guessing which area this one’s in.
Albertazzi, D. and McDonnell, D. (2009), “The parties of the centre right: many oppositions, one leader”, in Newell (2009a)
Allum, F. and Allum, P. (2008), “Revisiting Naples: clientelism and organized crime”, Journal of Modern Italian Studies,13(3)
Bardi, L. (2007), “Electoral change and its impact on the party system in Italy”, West European Politics 30(4)
Berselli, E. (2008a), “Quando la politica diventa un format”, la Repubblica 18 September
Berselli, E. (2008b), “L’antagonismo ex parlamentare”, la Repubblica 15 April
Bertinotti, F. (2008), “15 tesi per la sinistra”, Liberazione 13 November
Bordandini, P., Di Virgilio, A. and Raniolo, F. (2008), “The birth of a party: The case of the Italian Partito Democratico”, South European Society and Politics 13(3)
Briquet, J.-L. (2007), Mafia, justice et politique en Italie: L’affaire Andreotti dans la crise de la Republique (1992-2004), Paris: Karthala
Bull, M. and Newell, J. (2009), “Still the anomalous democracy? Politics and institutions in Italy”, Government and Opposition 44(1)
Buzzanca, S. (2008), “Sinistra Arcobaleno, un voto su due al Pd”, la Repubblica 17 April
Campus, D. (2009), “Campaign issues and themes”, in Newell (2009a)
Capano, G. and Giuliani, M. (2003), “The Italian parliament: In search of a new role?”, Journal of Legislative Studies 9(2)
Capoccia, G. (2002), “Anti-system parties: a conceptual reassessment”, Journal of Theoretical Politics 14(1)
Carbone, M. and Newell, J. (2008), “Towards the end of a long transition? Bipolarity and instability in Italy’s changing political system”, Politics 28(3)
Chiaramonte, A. (2009), “Italian voters: Berlusconi’s victory and the ‘new’ party system”, in Newell (2009a)
Corriere della Sera (2008), “Berlusconi: Veltroni nei fatti e’ inesistente”, 17 September
Corriere della Sera (2009), “Parisi: via chi ci ha condotti nel pantano”, 21 February
Croci, O. (2001), “Language and politics in Italy: from Moro to Berlusconi”, Journal of Modern Italian Studies 6 (3)
de Marchis (2008), “Anche il modello Roma ha ceduto e al loft parte la resa dei conti”, la Repubblica 29 April
della Porta, D. and Vannucci, A. (2007), “Corruption and anti-corruption: The political defeat of ‘Clean Hands’ in Italy”, West European Politics 30(4)
Donovan, M. (2009), “The processes of alliance formation”, in Newell (2009a)
Edwards, P. (2005), “The Berlusconi anomaly: Populism and patrimony in Italy’s long transition”, South European Society and Politics10(2)
Edwards, P. (2008), review of Briquet, Mafia, justice et politique en Italie, Modern Italy 13(3)
Edwards, P. (2009), ‘More work! Less pay!’ Rebellion and repression in Italy, 1972‑77, Manchester: Manchester University Press
Fabbrini, S. (2006), “The Italian case of a transition within democracy”, Journal of Balkan and Near Eastern Studies 8(2)
Fusani, C. (2008a), “Rifondazione non trova l’accordo; Drammatica conta per la segreteria”, la Repubblica 26 July
Fusani, C. (2008b), “Ferrero nuovo segretario di Rc; Vendola sconfitto: ‘No scissione'”, la Repubblica 27 July
Giannini, M. (2008), “Dal Pd opposizione senza sconti: non daremo tregua a Berlusconi”, la Repubblica 18 April
Gilbert, M. (1998), “In search of normality: The political strategy of Massimo D’Alema”, Journal of Modern Italian Studies 3(3)
Ginsborg, P. (1990), A history of contemporary Italy: Society and politics 1943-1988, London: Penguin
Ginsborg, P. (2001), Italy and its discontents: Family, civil society, state 1980-2001, London: Penguin
Kimber, R. (2009), Political science resources
la Repubblica(2006a), “Elezioni, Berlusconi non molla: ‘Non li faremo governare'”, 21 April
la Repubblica (2006b), Speciale elezioni 2006
la Repubblica (2008a), Speciale elezioni 2008
la Repubblica (2008b), “Veltroni: ‘Il dialogo si chiude; Berlusconi ha strappato la tela'”, 17 June
la Repubblica (2008c), “Berlusconi: ‘Pm sovversivi’; E attacca Veltroni: E’ un fallito'”, 20 June
la Repubblica (2009a), Speciale elezioni 2009
la Repubblica (2009b), “Prc e Sl fuori anche dall’Europarlamento; Mpa bene in Sicilia, ma e’ lontano il 4%”, 8 June
Maltese (2008), “Il morso del Caimano”, la Repubblica 21 June
Newell, J. (2006), “Characterising the Italian parliament: Legislative change in longitudinal perspective”, Journal of Legislative Studies 12(3)
Newell, J. (ed.) (2009a), The Italian general election of 2008, Basingstoke: Palgrave
Newell, J. (2009b), “Introduction: a guide to the election and ‘instructions for use'”, in Newell (2009a)
Newell, J. (2009c), “The man who never was? The Italian transition and 2008 election”, paper presented at PSA annual conference, April
Pacini, M. (2009), “Public funding of political parties in Italy”, Modern Italy 14(2)
Paolucci, C. (2006), “The nature of Forza Italia and the Italian transition”, Journal of Balkan and Near Eastern Studies 8(2)
Paolucci, C. and Newell, J. (2008), “The Prodi government of 2006 and 2007: A retrospective look”, Modern Italy,13(3)
Pasquino, G. (2004) “The restructuring of the Italian party system”, paper presented at PSA Annual Conference, April
Pasquino, G. (2009), “The Democratic Party and the restructuring of the Italian party system”, Journal of Modern Italian Studies 14(1)
Pridham, G. (1990), “Political actors, linkages and interactions: Democratic consolidation in Southern Europe”, West European Politics13(4)
Russo, F. and Verzichelli, L. (2009), “A different legislature? The parliamentary scene following the 2008 elections”, in Newell (2009a)
Serracchiani, D. (2009), intervention at national meeting of Partito Democratico groups, 21 March
Shore, C. (1990), Italian Communism: the escape from Leninism, London: Pluto
Sinistra Critica (2008), “Sinistra Critica vince la scommessa. Ora ricostruiamo dall’opposizione sociale“, 15 April
Tarchi, M. (2003), “The political culture of the Alleanza Nazionale: an analysis of the party’s programmatic documents (1995-2002)”, Journal of Modern Italian Studies 8(2)
Veltroni, W. (2007), “Un’Italia unita, moderna e giusta”, speech to Partito Democratico, 26 June
Vendola, N. (2008), “Noi predichiamo il cambiamento ma il cambiamento non ci riconosce”, Liberazione 16 November
Vendola, N. (2009), “Un cantiere aperto“, 8 June
It’s a ‘transition’ thing; I’m defending the idea of an ‘Italian transition’, despite the fact that the transition’s been going on for 17 years now and shows no sign of ending. That, and saying what I think of Walter Veltroni (although you do have to be fairly diplomatic in academic papers).
I guess I’m hoping that someone somewhere will look at the sheer range covered by these two papers & think “wow!”. Although I concede it’s more likely that they’d think “why?” (Because I was asked, would be the flip answer – but I jumped at the chance, both times. Why? Well, because the area I’m interested in lies… somewhere in between. What can I say, it’s a big area.)
Overreaching can be a problem. John Otway thought he was going to amaze the world when he followed Really Free with Geneva, a heartfelt orchestral ballad – his first song was awkward, energetic and hilarious, and now this! is there nothing he can’t do? Instead of which the reaction was …and now this! what’s he think he’s doing? Mind you, it didn’t help matters that Otway can’t, when you get right down to it, actually sing, as such – no handicap if you’re working in the awkward-energetic-hilarious area but a bit of a problem on the heartfelt-ballad front.
Glad I’ve got it done, anyway. Have I just done an Otway? It’s a worry. (Mind you, he seems to do all right.)
Last night I dreamed an angel kissed me, Solpadeine…
I’ve just finished a paper. I never have much trouble writing, once I get going; my problem is always that I try to get the kitchen sink in, while also being vaguely provocative and gnomic in the manner of Debord or Garfinkel or Nils Christie. So I spend far too long reading all round the subject, then wear myself out trying to fit it all together, then produce something everyone thinks is a bit off to one side of what they were expecting.
Anyway, here’s the bibliography, which I compiled over a happy (if dull) couple of hours this afternoon, listening to Robyn Hitchcock’s album Luxor (and especially its mysteriously euphoric last track, “Solpadeine”). Question for anyone who recognises more than a couple of those names: what discipline am I in? (It’s not a guessing game, I’m genuinely curious.)
Ashworth, A. (2000), “Is the criminal law a lost cause?”, Law Quarterly Review 116
Ashworth, A. (2006), “Four threats to the presumption of innocence”, International Journal of Evidence & Proof 10(4)
Ashworth, A. and Zedner, L. (2008), “Defending the criminal law: Reflections on the changing character of crime, procedure, and sanctions”, Criminal Law and Philosophy 2(1)
Ayres, I. and Braithwaite, J. (1992), Responsive regulation: transcending the deregulation debate, Oxford: OUP
Babcock, B. (1982), “Fair play: Evidence favorable to an accused and effective assistance of counsel”, Stanford Law Review 34(6)
Baldwin, R. (2004), “The new punitive regulation”, Modern Law Review 67(3)
Bates, E. (2009), “Anti-terrorism control orders: Liberty and security still in the balance”, Legal Studies 29(1)
Benjamin, W. (tr. Edmund Jephcott) (1986 (1921)), “Critique of violence”, in Benjamin, W., Reflections, New York: Schocken
Black, J. (2002), “Critical reflections on regulation”, Australian Journal of Legal Philosophy 27(1)
Black, J. (2004), “Law and regulation: The case of finance”, in Parker, Scott, Lacey and Braithwaite 2004
Blake, M. and Ashworth, A. (1996), “The presumption of innocence in English criminal law”, Criminal Law Review
Bottoms, A. (2003), “Some sociological reflections on restorative justice”, in von Hirsch, A., Roberts, J., Bottoms, A., Roach, K. and Schiff, M. (eds.), Restorative justice and criminal justice: Competing or reconcilable paradigms?, Oxford: Hart
Braithwaite, J. (1982), “Challenging just deserts: Punishing white-collar criminals”, Journal of Criminal Law and Criminology 73(2)
Braithwaite, J. (1989), Crime, shame and reintegration, Cambridge: CUP
Braithwaite, J. (1997), “On speaking softly and carrying big sticks: Neglected dimensions of a republican separation of powers”, University of Toronto Law Journal, 47(3)
Braithwaite, J. (2002), Restorative justice and responsive regulation, Oxford: OUP
Braithwaite, J. (2005), “Pre-empting terrorism”, Current issues in criminal justice 17(1)
Cane, P. (2002), “Tort law as regulation”, Common Law World Review 31(4)
Carson, W. (1970), “White-collar crime and the enforcement of factory legislation”, British Journal of Criminology 10(4)
Christie, N. (1977), “Conflicts as property”, British Journal of Criminology 17(1)
Coffee, J. (1991), “Does ‘unlawful’ mean ‘criminal’?: Reflections on the disappearing tort/crime distinction in American law”, Boston University Law Review 71(2)
Cooter, R. (1984), “Prices and Sanctions”, Columbia Law Review 84(6)
Crawford, A. and Newburn, T. (2002), “Recent developments in restorative justice for young people in England and Wales: Community participation and representation”, British Journal of Criminology 42(3)
Cruft, R. (2008), “Liberalism and the changing character of the criminal law: Response to Ashworth and Zedner”, Criminal Law and Philosophy 2(1)
Flint, J. and Nixon, J. (2006), “Governing neighbours: Anti-social behaviour orders and new forms of regulating conduct in the UK”, Urban Studies 43(5-6)
Garfinkel, H. (1956), “Conditions of successful degradation ceremonies”, American Journal of Sociology 61(5)
Hood, C., Rothstein, H., and Baldwin, R. (2001), The government of risk, Oxford: OUP
Hoyle, C., Young, R. and Hill, R. (2002), Proceed with caution: An evaluation of the Thames Valley Police initiative in restorative cautioning, York: Joseph Rowntree Foundation
Kamenka, E. and Tay, A. (1975), “Beyond bourgeois individualism: The contemporary crisis in law and legal ideology”, in Kamenka, E. and Neale, R. (eds.), Feudalism, capitalism and beyond, London: Edward Arnold
Kamenka, E. and Tay, A. (1986), “The traditions of justice”, Law and philosophy 5(3)
Lacey, N. (2004), “Criminalization as regulation: The role of criminal law”, in Parker, Scott, Lacey and Braithwaite 2004
Loader, I. (2006), “Policing, recognition, and belonging”, ANNALS of the American Academy of Political and Social Science 605(1)
Parker, C., Scott, C., Lacey, N. and Braithwaite, J. (eds.) (2004), Regulating Law, Oxford: OUP
Pashukanis, E. (1924), “The general theory of law and Marxism”, in Beirne, P. and Sharlet, R. (eds.) (1980), Pashukanis: Selected writings on Marxism and law, London: Academic Press
Paulus, I. (1977), “Strict liability: Its place in public welfare offences”, Criminal Law Quarterly 20(4)
Pavlich, G. (1996), “The power of community mediation: Government and formation of self‑identity”, Law and Society Review 30(4)
Pavlich, G. (2005), Governing paradoxes of restorative justice, London: GlassHouse
Shapland, J., Atkinson, A., Atkinson, H., Colledge, E., Dignan, J., Howes, M., Johnstone, J., Robinson, G. and Sorsby, A. (2006), “Situating restorative justice within criminal justice”, Theoretical Criminology 10(4)
Sherman, L. (1990), “Police crackdowns: Initial and residual deterrence”, Crime and Justice 12(2)
Simmonds, N. (2005), “Jurisprudence as a moral and historical inquiry”, Canadian Journal of Law and Jurisprudence 18(2)
Simmonds, N. (2007), Law as a moral idea, Oxford: OUP
Stapleton, J. (2004), “Regulating torts”, in Parker, Scott, Lacey and Braithwaite 2004
Van den Haag, E. (1982), “The criminal law as a threat system”, Journal of Criminal Law and Criminology 73(2)
Von Hirsch, A. (1990), “Proportionality in the philosophy of punishment: From ‘why punish?’ to ‘how much?’”, Criminal Law Forum 1(2)
Von Hirsch, A. and Ashworth, A. (1992), “Not not just deserts: A response to Braithwaite and Pettit”, Oxford Journal of Legal Studies 12(1)
Waldron, J. (2008), “The concept and the rule of law”, Georgia Law Review 43(1)
Young, R. (2000), “Just cops doing ‘shameful’ business?: Police-led restorative justice and the lessons of research”, in Morris, A. and Maxwell, G. (eds.) Restorative justice for juveniles: Conferencing, mediation and circles, Oxford: Hart
Young, R. (2001), “Integrating a multi-victim perspective into criminal justice through restorative justice conferences”, in Crawford, A. and Goodey, J., Integrating a Victim Perspective within Criminal Justice, Dartmouth: Ashgate
Criminology or legal theory, Rob suggests in comments. Yes, but that’s exactly the problem – which is it to be? I’m addressing regulation (hence all the Braithwaite) from a standpoint within criminology, but making a case which leans rather hard on legal theorists (Ashworth, Simmonds) & work close to them (von Hirsch), while remaining ultimately within the phenomenological tradition in sociology (Garfinkel). (Sounds good – but what does it actually sound like?) I’m in danger of falling between every stool there is. I’m sure there’s a journal somewhere which will lap this kind of thing up, but I haven’t identified it yet.
And then today I woke beside you, Solpadeine…
Last night I didn’t dream an angel kissed me. I did, however, dream that I was walking round Manchester with Barack Obama. I wasn’t exactly showing him around – he knew exactly where he was going and frequently pointed things out to me, generally things like used needles and people begging. He was a nice bloke. We parted at the bottom of the High Street, with me heading to the bus station and him to his hotel; he invited me to go for dinner, but I said I ought to get back.
“Whether the subject sinks into madness, practises theory or participates in an uprising … the two poles of daily life – contact with a narrow and separate reality on one hand and spectacular contact with the totality on the other – are simultaneously abolished” (Voyer) Presumably life, music and dreams will all seem that much duller now that I’ve finished with the practice of theory. Note to self: write more papers.
I was waiting for the Soft Boys, Solpadeine
I was waiting for the Soft Boys, Solpadeine
And I saw them coming across the dying grass
That long hot summer
When you were born
Following another thread in another place, here are a couple of reviews of books about Silvio Berlusconi, currently Prime Minister of Italy for the third time. As you can see, these reviews predate the 2006 elections, won by a united Left under Prodi (perhaps not quite the gran tessitore Aldo Moro was, but certainly a tessitore to be reckoned with). Consequently they also predate the 2008 elections, lost by a divided Left under Veltroni (who was either stupid enough to believe his own publicity or naive enough to believe that Berlusconi would reward him for his moderation after the inevitable defeat).
If my book (see next post down) has any relevance to contemporary Italy, it’s that all this could have been avoided if the Communist Party hadn’t got stuck in a groove of principled centre-right ‘moderation’ – of defining themselves as The Left That Wants To Be Loved By The Right. Veltroni’s act of electoral suicide suggests that they still haven’t learnt the lesson of the 1970s.
Paul Ginsborg, Silvio Berlusconi: Television, power and patrimony
Printed in Red Pepper, February 2005
In March 2001, a 128-page book was mailed to millions of Italian households. Titled Una storia italiana (“An Italian Story”), the book told the story of Silvio Berlusconi: a man from a poor background who had grown rich through hard work and loyalty to his friends, and who now wanted to serve his country. In May 2001, Cinderella went to the ball: Berlusconi became Prime Minister for the second time, leading a coalition which received nearly 50% of the vote. Berlusconi’s own party took nearly 30% – almost twice the vote of its nearest rival, the post-Communist Left Democrats.
Berlusconi faced several charges of corruption and fraud arising from his business career. His government acted promptly, passing laws which annulled some of Berlusconi’s court cases and obstructed others. Berlusconi still faces one charge of bribing a judge, but the court is likely to run out of time under the statute of limitation. Meanwhile, 90% of the television watched in Italy is broadcast either on the state RAI network – subject to heavy government pressure – or on Berlusconi’s Mediaset channels. In 1994 Italy’s supreme court ruled that Berlusconi’s share of terrestrial broadcasting was excessive and ordered one of his channels to transfer to satellite. In 2003, as the final deadline loomed, a decree overriding the ruling was signed by the Prime Minister, Silvio Berlusconi.
Berlusconi’s attitude to the Italian legal system is not so much cavalier as openly hostile. In the early 1990s Italy’s post-war ruling class disappeared under an avalanche of corruption trials. For Berlusconi, this judicial onslaught has a simple explanation: it was a Communist plot. Communists are behind his own trials; they have also occupied positions of power in RAI, the education system and the culture industry, from which they must now be extirpated. Some intellectuals now argue that the ‘First Republic’ of 1948-92 was characterised by a ‘cultural hegemony of the left’; more bluntly, Berlusconi proposes to rescue Italy from ‘fifty years of Communism’.
As well as being a leading writer of contemporary Italian history, Paul Ginsborg is active in the opposition to Berlusconi; he has criticised the ‘self referential’ politics of the Left Democrats, urging a new relationship with the forces of radical and ethical protest. This brief but valuable book shows a deep understanding of the Berlusconi phenomenon, pinpointing both his populism and his patrimonialism – an oddly feudal belief in loyalty, largesse and reciprocal favours, given greater scope by access to the assets of the Italian state. Ginsborg’s partisanship is unmistakable but does not cloud his judgment; if anything it has a positive effect, bringing the gravity of his charges against Berlusconi into sharp focus.
Unfortunately, Ginsborg says little about the background to Berlusconi’s apparent paranoia. Italy’s stagnant and corrupt political class, whose heir Berlusconi is, was rooted in a diffuse culture of illegality; for many Italians under the First Republic, giving and receiving bribes was a way of life. Opposition to this situation came largely from the Left, which built a thriving and influential sub-culture out of its exclusion from political power; left-wing judges, in particular, were staunch defenders of the Italian Constitution and of ethics in public life. The two coalitions which faced off in 2001 were an imperfect but genuine reflection of two conflicting cultures; one of them has won its most decisive victory in over forty years, and now intends to make it permanent. The Italian Left urgently needs to combine unity with radicalism and a renewed commitment to ethical politics; it’s a challenging combination, but this is a challenging conjuncture. In the British press, Berlusconi is too often presented as comical, ludicrous or merely contemptible. Ginsborg gives him his due, taking the threat that he presents entirely seriously.
David Lane, Berlusconi’s Shadow: Crime, justice and the pursuit of power
Printed in the Independent, 14/9/2004
Italy’s vocation for political turmoil is matched by the sluggishness of its courts: cases continue for months or years; charges are annulled to cut the backlog; sentences only take effect after appeal, by which time the original charge may have expired under the statute of limitations.
Under another system, the Italian prime minister might now be a convicted criminal. Silvio Berlusconi has been found guilty of corruption and false accounting (verdicts reversed on appeal) and illegally financing Bettino Craxi’s Socialist Party (charge expired during appeal). A conviction for perjury was annulled. An associate was jailed for bribing a judge; another was convicted for extortion and faces charges of Mafia involvement.
For Berlusconi and his party, Forza Italia, this judicial onslaught is a Communist conspiracy to deprive the Italian people of their chosen leader. This allegation intimidates Berlusconi’s critics. Since Forza Italia and its allies came to power in May 2001, a more direct – and dangerous – approach has become available. A series of measures have been passed that hamper magistrates investigating false accounting, cases using Mafia informers, and those involving high-ranking politicians.
David Lane writes for The Economist, which Berlusconi sued for libel after it suggested he was unfit to lead Italy. Berlusconi’s Shadow is a withering indictment of crony capitalism, executive thuggery and government incompetence. For Lane, Berlusconi is a shrewd but amoral businessman who entered politics to safeguard his interests and is now out of his depth. This contrasts with the picture presented by writers such as Paul Ginsborg, for whom Berlusconi’s combination of anti-political populism and media power makes him a real threat to democracy.
The test will come in the 2006 elections. Italy’s governing coalition looks fragile; the ex-Fascists of Alleanza Nazionale are bizarrely emerging as standard-bearers of principled conservatism. But neither the strength of Forza Italia nor Berlusconi’s will to power should be underestimated. With the left in long-term disarray, and court cases still hanging over the prime minister, Italy faces several more years of political instability.
More news on my book. I handed over the corrected proofs this morning, together with an index. Compiling the index was easier than I’d thought it would be, but still not exactly fun; it was one of those tasks that leaves you looking round for the next chunk of mental hard labour for several days afterwards. My basic approach was to index every proper name I could see, plus a few key concepts. I then cut out most names with only one occurrence, although a few got left in for the benefit of anyone who picks up the book and starts by browsing the index (don’t tell me it’s just me).
It’s called ‘More work! Less pay!’ Rebellion and repression in Italy, 1972-7, and it’ll be published (initially in hardback) by Manchester University Press this autumn. And that index? Here’s a selection. (For each initial letter I’ve included the first entry and the one with the most references.)
|B||Balestrini, Nanni; Brigate Rosse (BR)|
|C||Cacciari, Massimo; Confederazione Generale Italiano del Lavoro (CGIL)|
|D||d’Alema, Massimo; Democrazia Cristiana (DC)|
|E||L’erba voglio; Euzkadi Ta Azkatasuna (ETA)|
|F||Faina, Gianfranco; Feltrinelli, Giangiacomo|
|G||Gandalf the Violet; Gruppi d’Azione Partigiana (GAP)|
|H||‘Historic compromise’; Hot Autumn|
|L||Lama, Luciano; Lotta Continua|
|M||Maccari, Germano; Movement of 1977|
|N||Napolitano, Giorgio; Negri, Antonio|
|P||Pajetta, Enrico; Partito Comunista Italiano (PCI)|
|R||Radical Party; Resistance (Italian)|
|S||Sayer, Andrew; Scalzone, Oreste|
|U||Unità Comuniste Combattenti (UCC); l’Unità|
|V||Via italiana al socialismo|
They say you can tell a lot about a book from its index; certainly I’m pretty pleased with what this one seems to be saying. It’s not Pale Fire – no “Berlinguer, idiocy of; idleness of; taste of, in shoes” sub-entries – but I think it tells you pretty much what the book’s about. It’s about Togliatti, Feltrinelli, Lotta Continua and the Red Brigades, and everything that connects them. One connection in particular:
Partito Comunista Italiano (PCI) passim
see also Austerity; Berlinguer, Enrico; Confederazione Generale Italiano del Lavoro; Historic Compromise; Lama, Luciano; Togliatti, Palmiro; l’Unità
There was a curious piece in the ‘Work’ section of Saturday’s Guardian (I only read it for the problem page). It was headed
10 things we’ve learned so far
We send our reporters around the UK to see what happens in a downturn
but on inspection there were only three things that they’d learnt from their roving reporters; the other seven were single-paragraph makeweights. The three big investigative findings were
1. We innovate more
Kate Burt meets the start-ups who won’t be put off by a credit crunch.
2. We’re willing to lower our sights
Lydia Stockdale and Huma Quereshi interview workers who swallowed their pride to do a job they previously thought beneath them.
3. We don’t like ‘foreigners’ taking ‘our’ jobs
Hsiao-Hung Pai visits migrant Italian workers living on a barge in Grimsby.
OK. Now, I’ll admit to having taken a fairly optimistic view of the Lindsey strike from day one. I’m in favour of people being able to travel to look for work, but I’m even more in favour of people not having to travel any further than they want to. I don’t see anything inherently problematic in a workforce in location X objecting to being replaced by a workforce which the employer has bussed in (or shipped in) for the purpose; I certainly don’t think any such protest is inherently racist or xenophobic, as Pai’s scare-quotes rather strongly suggest. (“We don’t like the boss taking the jobs we were doing off us” wouldn’t have quite the same ring to it.)
But it can’t be denied that the strike did acquire some definite nationalist overtones, thanks not least to some of its supporters on the mainstream Left. So it was heartening to see the demands which (thanks to Socialist Party members) the strike committee adopted – demands which rather pointedly don’t frame the strike in nationalist terms.
• No victimisation of workers taking solidarity action.
• All workers in UK to be covered by NAECI Agreement
• Union controlled registering of unemployed and locally skilled union members
• Government and employer investment in proper training / apprenticeships for new generation of construction workers
• All Immigrant labour to be unionised.
• Trade Union assistance for immigrant workers – via interpreters – to give right of access to Trade Union advice – to promote active integrated Trade Union Members
There have been different views on what the strike achieved. The Socialist Party remained upbeat:
the original contractor, Shaw, had been told that they had lost part of the work to an Italian company, IREM, who would bring in their own workforce from Italy and elsewhere to do the job. As a result, Shaw had told the shop stewards on the site that some of their members would be made redundant from 17 February to make way for the Italian workers.
What was crucial in this was not the fact that they were Italian or Portuguese but that they would not be part of the National Agreement for the Engineering and Construction Industry (NAECI). Why? Because under the EU directives, backed up by the European Court of Human Rights, employing those workers under NAECI conditions would be seen as a “restraint on trade” and therefore against the freedom of movement of labour and capital enshrined in the EU capitalist club’s rules and regulations.
It was clear that the IREM workers were not in a union, Italian or otherwise. Italian union confederation CGIL leader Sabrina Petrucci was quoted in the Morning Star on 6 February saying that IREM is a notorious non-union firm.
In a major breakthrough, part of the deal allows for the shop stewards to check that the jobs filled by the Italian and Portuguese workers are on the same conditions as the local workers covered by the NAECI agreement. The Lindsey oil refinery is what is known as a ‘blue book’ site and all workers on it should be covered by the NAECI agreement. This means in practice that the union-organised workers will be working alongside the IREM-employed Italian workers and will be able to “audit” whether or not this is the case.
Unite’s statement is rather less gung-ho; but then, it wasn’t a union strike, and as such there must have been an element of relief when it was over. But even Derek Simpson stops short of trotting out the “British jobs for British workers” line again:
Unite joint general secretary, Derek Simpson said, “This is a good deal which establishes the principle of fair access for UK workers on British construction projects. We now expect other companies in the construction industry to level the playing field for UK workers. The workers involved in the unofficial strike can now get back to work.
“Lindsey is part of a much wider problem that will not go away just because the workers at Lindsey have voted to go back to work. There are still employers who are excluding UK workers from even applying for work on construction projects. No European worker should be barred from applying for a British job and absolutely no British worker should be barred from applying for a British job.”
Some on the left have pointed to what IREM told ACAS, suggesting that the strike was based on a misapprehension: supposedly IREM already were abiding by the provisions of the ‘blue book’ (even though they didn’t have to), and the only substantive difference in pay and conditions had to do with the timing of meal breaks. On the other hand, ACAS do concede that IREM couldn’t provide documentary evidence of what they were claiming; on those grounds alone, the role which the settlement grants to shop stewards is a step forward. I also think that, if it’s a choice between “hiring decisions made by corporate management” and “hiring decisions made by corporate management and local unionised workers”, anyone on the Left should prefer the latter in almost all circumstances.
In short, what the strike achieved was: to make the demands of local workers a factor in corporate decision-making; to ensure that all workers, whether locally-based or brought in temporarily, are employed on terms better than the minimum required by EU law; and to give the unions a role in policing this agreement. (The unions hadn’t done a lot to earn this – but then, the unions do tend to turn up in time to take the benefits of wildcat actions, even when they’ve been sitting on the sidelines all the way through. Oops, little bit of workerism, my name’s Toni Negri goodnight.) On a broader level, the strike also legitimised the idea of wildcat industrial action and demonstrated that anti-union legislation can be ignored if you’ve got the numbers. Basically, the job’s a good ‘un. But you wouldn’t know it from Hsiao-Hung Pai:
Francesco and Gianluca are two of the 100 Italians who arrived in late January on a four-month contract to work at the French oil giant, Total, at Lindsey oil refinery in Immingham. Francesco, in his late forties, has worked as a welder in Tunisia and Libya. Gianluca, in his thirties, has worked in Croatia and Germany. “This is my first time in the UK,” Francesco says, “and it is the first time in my 20 years of working abroad that I’ve experienced anti-foreign feelings.”
Their employment by Italian company Irem, for the building of a sulphurisation facility at Total, prompted a wave of nationwide wildcat strikes involving more than 6,000 workers on 20 construction sites – all angry that “foreign workers” are taking “British jobs”. The Unite union says the strikes are about challenging the Posted Workers Directive and ensuring service providers follow national agreements across the EU. And yet the unions have rallied behind the divisive slogan of “British jobs for British workers”, and alienated migrant workers in the process.
I think ‘divisive’ is a bit strong. ‘Potentially divisive’, fair enough, but it’s not an inherently divisive slogan: it’s perfectly possible to read that slogan as saying “people based here want to carry on working here (and we’re throwing Gordon Brown’s words back at him)”. Apart from anything else, I’m not aware of any evidence (and Pai doesn’t quote any) that migrant workers have been alienated; indeed, I know of some unionists who have gone to some lengths to try and stop this happening. More to the point, what’s with that ‘and yet’? There’s no dishonesty here, and not much in the way of contradiction. Yes, Unite – in the person of Mr Simpson – has ‘rallied behind’ that slogan, although (as we’ve seen) even he has backed away from it now. But the strike was about challenging the Posted Workers Directive; the worst you can charge Simpson with is inconsistency. Besides, Simpson and Unite weren’t even involved. The fact that the strike took place outside union structures, and that the strike committee itself disowned that slogan, would surely be worth mentioning in any reasonably complete account of the dispute.
Francesco says the real issue is about the system of subcontracting which isn’t specific to overseas firms and affects workers of all nationalities. “Irem pays differentiated wages to its workers,” he explains. “The hourly rate ranges from €14 [£12.50] in Bologna to €12 in the UK. Ten of us welders are on €12 per hour but the 80 labourers are on €7 per hour. And the new 100 British workers [starting work following an agreement with the unions] will be on the same rate.” Gianluca looks at my interpreter friend. “I remember migrants in Italy, like Bulgarian workers … They earn less than half our rate, for doing the same skilled jobs. I asked myself, the Bulgarians are also specialists like us, why are they only earning €5? All [posted] workers should be paid equally and have the same rights.”
Interesting information – although I don’t quite follow the bit about how a system in which The hourly rate ranges from €14 [£12.50] in Bologna to €12 in the UK isn’t specific to overseas firms. More to the point, the demand that all [posted] workers should be paid equally and have the same rights was exactly what the strike was about – and exactly what the victory of the strike achieved, albeit only in one location (so far – la lotta continua).
But instead of advocating equal conditions for all workers, British trade unions have bowed to nationalist pressure and fought for quotas for British workers. Picket line racist abuse was treated as acceptable. “I saw a Lindsey steward give out union jack flags to strikers here,” said local activist John Shemeld of the Staythorp power plant strike. “The leadership [of the strikes] is not racist, but they don’t challenge racism.”
This is extraordinarily misleading. First, as noted above, the strike took place outside any union structures; in this instance ‘British trade unions’ haven’t ‘fought’ for anything. Second, the strike committee fought for “equal conditions for all workers” and a one-off quota (not “quotas”) for locally-based (not “British”) workers; the two aren’t contradictory. (I suspect that the enforcement of equal conditions will make shipped-in labour less attractive anyway, but even if this weren’t the case I would see the quota as making British and Italian workers more rather than less equal.) Third, Pai doesn’t tell us anything about this “picket-line racist abuse” (what, when, how much); or who it “was treated as acceptable” by; or, for that matter, what the connection was between this abuse (whatever it was), its toleration (whoever did tolerate it) and that “nationalist pressure” (whatever that means). There certainly was “nationalist pressure” on the picket line, in the sense that the BNP turned up; the BNP turned up and they were told to clear off. Again, you wouldn’t learn this from Pai. There’s a general, woozy slippage between ‘racism’, ‘nationalism’ and ‘willingness to adopt patriotic imagery’ here, exemplified by that closing line from “local activist John Shemeld”. Shemeld seems to read tolerance of racism into the sight of a steward handing out Union Jacks – not ideal, certainly, but it’s worth noting that shop stewards couldn’t hand out anything with a union logo on, given that it was a wildcat strike.
In short, I think Hsiao-Hung Pai’s either got a very superficial understanding of the dispute or been misinformed. It’s great that she managed to talk to the Italian workers, but it’s a shame she didn’t speak to any of the local activists who were actually involved in the strike; I’m sure they could have helped her come up with something better. (I wouldn’t mind so much, only the other two articles were bobbins – especially 2. We’re willing to lower our sights. Apparently packing stuff in a warehouse doesn’t pay as well as being an investment banker, but you don’t have to get up so early. Or it might have been the other way round. Being a part-time lecturer in 2009 doesn’t pay as well as editing a magazine in 1998, I can tell you that, and you still have to get up in the morning. I wouldn’t go back, though – apart from anything else, that magazine doesn’t come out any more. But I digress.)
My book: an announcement and a question.
I’m quite excited about my book. Or should I say, my book – for lo, that’s an actual link to a page where you can, apparently, pre-order it, with free UK delivery and everything. And here’s the publisher’s page about the book, and here’s what it says there:
‘More work! Less pay!’
Rebellion and repression in Italy, 1972–77
In the mid-1970s, a wave of contentious radicalism swept through Italy. Groups and movements such as ‘Proletarian youth’, ‘metropolitan Indians’ and ‘the area of Autonomy’ practised new forms of activism, confrontational and often violent. Creative and brutal, intransigent and playful, the movements flourished briefly before being suppressed through heavy policing and political exclusion.
This is the first full-length study in English of these movements. Building on Sidney Tarrow’s ‘cycle of contention’ model and drawing on a wide range of Italian materials, Phil Edwards tells the story of a unique and fascinating group of political movements, and of their disastrous engagement with the mainstream Left. As well as shedding light on a neglected period of twentieth century history, this book offers lessons for understanding today’s contentious movements (‘No Global’, ‘Black Bloc’) and today’s ‘armed struggle’ groups.
This book will be of great interest to scholars in the fields of Italian politics and society; the sociology of social movements; and terrorism and political violence.
2. The Hot Autumn and after: a cycle of contention reconsidered
3. From Resistance to Historic Compromise: the politics of the PCI
4. From Feltrinelli to Moro: a second cycle of contention
5. ‘Repudiate all forms of intolerance’: how the movements were framed
6. A cycle and its aftermath
7. Do you remember revolution?
8. Social movements and cycles of contention: theoretical appendix
The book itself is currently sitting on the floor of our front room in the form of proofs (proofs! actual proofs of my book!) – proofs which I’m going to have to check before too long, to say nothing of producing an index.
Setting aside my new-authorial giddiness (which mostly evaporated when I started thinking about indexing anyway), I honestly think this is a book that’s well worth publishing. It is the first full-length study in English of the Italian movements of the 1970s – the great archipelago of Autonomia, the ‘proletarian youth’, the indiani metropolitani, the movimento del ’77 and all – not to mention the vast and complex panorama of ‘armed struggle’ groups which flourished and declined alongside them. There’s some of this in Storming Heaven, Steve Wright’s excellent book on operaismo and Autonomia; there’s some about the movimento in one chapter of Robert Lumley’s States of Emergency; and there are a couple of very good books about the armed groups by David Moss and Donatella della Porta. But to get a proper overview of the scene, you’ve basically had to read Italian. Up to now!
All right, so it’s an academic specialism like any other, and I only think it’s fascinating and important because it’s my academic specialism – someone else could make an equally good case for a new atlas of French regional dialects or a groundbreaking study of variations in snail shell thickness. But I do think it’s fascinating and important – and since this is my blog, I’ll take the space to tell you why.
Italian politics often looks a bit weird, seen from the outside, and the mid- to late 1970s were a particularly weird period. It had two particularly striking features. Firstly, you had a political system that was becoming more and more ossified, heading for the final stasis of the ‘five party’ period (when every political party to the Left of the Fascists and to the Right of the Communists was locked into a permanent coalition around the ruling Christian Democrats). The Communists – who had been systematically excluded from power since 1948 – tried to challenge the Christian Democrats’ dominance of Italian politics, but they did so (this is the weird part) by asking to be allowed to share power; the word ‘begging’ also comes to mind. The Communists’ approach was politically abject; it was tactically inept (the Christian Democrats under Aldo Moro ran rings around them), and it was strategically disastrous (the party never recovered, and arguably still hasn’t). Whether ideologically or in terms of party self-interest, it made no sense at all. Why did they do it?
Well, you’ll have to read chapter 3, but a large part of what was going on had to do with the second oddity of the period. In the late 1960s there had been a huge amount of industrial militancy, beginning outside the unions and very largely escaping their control. The wave of activism culminated at the very end of the decade, with an official settlement agreed in December 1969; this got the workers most of what they’d wanted, while also giving the unions what they’d wanted by acknowledging their representative role in the workplace. So in 1970 everyone went back to work, to be greeted with a pay rise plus official union representation, and things went back to normal. What’s extraordinary is what happened next: over the next few years, things started kicking off again, in the name of direct action against inflation. Rent strikes, bus fare strikes, utility strikes, ‘proletarian shopping’ (à la Can’t pay? Won’t pay!)… it was all happening, facilitated in many cases by people who’d cut their teeth in the wildcat strikes of the 60s. It’s a period of extraordinarily active and widespread protest and agitation; it didn’t go anywhere near the official Left (represented by the poor old Communist Party); and, for the most part, it didn’t go near the workplace either.
So you had political stasis, a supine official Left and some fairly wild scenes in the streets, in the campuses and on the estates. And then you had the interaction between the movements and the Communist Party, which is the analytical heart of my book. Following news stories in the Communist Party’s paper l’Unità over a period of five years, I analyse the party’s dominant ‘framings’ of the movements – how the party leadership saw them, and how it wanted party members to see them. Hostility to the movements is not surprising – these were, after all, potential political rivals. What is surprising, and marks a sharp departure from the Party’s approach to the activism of the late 60s, is the hostility expressed towards the movements’ members, their demands and their culture. Instead of offering to take the movements under its wing, the Party essentially dismissed them in their entirety, after labelling them as breeding-grounds for nihilist hooligans and fascist provocateurs. This ‘scorched-earth’ policy made life extremely difficult for the movements, deprived of any kind of sponsor from within the political mainstream; from this point of view it could be said to have been a success. However, it also led inexorably to the Communist Party denying itself a major potential source of new members and new ideas, and alienating much of its existing support. And they never did get to share power with the Christian Democrats.
It’s a fascinating and in many ways a tragic period. More to the point, the scale and diffusion of activism makes it a very unusual period in European history. To think of another like it I think you’d need to go back to May ’68, if not to Barcelona ’36 – and both of those have had plenty written about them, even in English. Yes, Steve Wright’s book is good – and the chapter in Robert Lumley’s book – but I really think this is the first book in English to do the period justice. I don’t expect you’ll buy it, though, unless you’ve got an institutional budget. Here’s the problem: the initial edition is hardback only. The planned cover price is £60, or approximately 30p per page. There’s a possibility of a paperback edition, which I might be able to recommend people to buy with a straight face; there’s a possibility, if the hardback edition sells. It’s an edition of 400.
All giddiness spent, I know the topic of the radical left in Italy in the 1970s isn’t that fascinating to that many people; I know the book’s never going to sell a million. I think it’s got a definite readership, though, not all of whom frequent university libraries. With a fair wind I think it could sell a few thousand – if it was affordable.
So here’s the question, aimed particularly at anyone who’s been in a similar position or knows people who have (hi Daniel!): how can I sell (say) 300 academic hardbacks, knowing that they’re realistically only going to be bought by libraries and eccentric millionaires? Advertising? Journal papers (Phil Edwards is the author of…)? Word of mouth at conferences? Emails to everyone I’ve ever met who might be interested (Forgive the impersonal approach, NO STOP PLEASE DON’T DELETE THaaah, too late)? Blog posts like this one?
Any suggestions will be gratefully received. (And I really don’t expect you to buy the book yourself. Unless you’re a librarian and/or an eccentric millionaire, of course, in which case feel free.)
a significant part of British Islam has been caught up in a theocratic version of the faith that is anti-feminist, anti-homosexual, anti-democratic and has difficulties with Jews, to put the case for the prosecution mildly. Needless to add, the first and foremost victims of the lure of conspiracy theory and the dismissal of Enlightenment values are British Muslims seeking assimilation and a better life, particularly Muslim women.
It’s the word ‘significant’ that leaps out at me – that, and Cohen’s evident enthusiasm to extend the War on Terror into a full-blown Kulturkampf. I think what’s wrong with Cohen’s writing here is a question of perspective, or more specifically of scale. You’ve got 1.6 million British Muslims, as of 2001. Then you’ve got the fraction who take their faith seriously & probably have a fairly socially conservative starting-point with regard to politics (call it fraction A). We don’t really know what this fraction is, but anecdotal evidence suggests that it’s biggish (60%? 70%?) – certainly bigger than the corresponding fraction of Catholics, let alone Anglicans. Then there’s fraction B, the fraction of the A group who sign up for the full anti-semitic theocratic blah; it’s pretty clear that fraction B is tiny, probably below 1% (i.e. a few thousand people). Finally, you’ve got fraction C, the proportion of the B group who are actually prepared to blow people up or help other people to do so – almost certainly 10% or less, i.e. a few hundred people, and most of them almost certainly known to Special Branch.
I think we can and should be fairly relaxed about fraction A; we should argue with the blighters when they come out with stuff that needs arguing with, but we shouldn’t be afraid to stand with them when they’re raising just demands. (Same as any other group, really.) Fraction B is not a good thing, and if it grows to the point of getting on the mainstream political agenda then it will need to be exposed and challenged. But it hasn’t reached that level yet, and I see no sign that it’s anywhere near doing so. (Nigel Farage gets on Question Time, for goodness’ sake. Compare and contrast.) The real counter-terrorist action, it seems to me, is or should be around fraction C. Let’s say there are 5,000 believers in armed jihad out there – 500 serious would-be jihadis and 4,500 armchair jihadis, who buy the whole caliphate programme but whose own political activism doesn’t go beyond watching the Martyrdom Channel. What’s more important – eroding the 5,000 or altering the balance of the 500/4,500 split? In terms of actually stopping people getting killed, the answer seems pretty obvious to me.
Nick Cohen and his co-thinkers, such as the Policy Exchange crowd, focus on fraction B rather than fraction A. In itself this is fair enough – I think it’s mistaken, but it’s a mistake a reasonable person can make. What isn’t so understandable is the urgency – and frequency – with which they raise the alarm against this tiny, insignificant group of people, despite the lack of evidence that they’re any sort of threat. “A small minority of British Muslims believe in the Caliphate” is on a par with “A small minority of British Conservatives would bring back the birch tomorrow” or “A small minority of British Greens believe in Social Credit”. It’s an advance warning of possible weird nastiness just over the horizon; it’s scary, but it’s not that scary.
What explains the tone of these articles, I think, is an additional and unacknowledged slippage, from fraction B back out to fraction A. What’s really worrying Cohen, in other words, isn’t the lure of conspiracy theory and the dismissal of Enlightenment values so much as the lure of Islam (in any form) and the dismissal of secularism. (What are these Enlightenment values, anyway? Nobody ever seems to specify which values they’re referring to. Somebody should make a list). Hence this sense of a rising tide of theocratic bigotry, and of the need for a proper battle of values to combat it. This seems alarmingly wrongheaded. Let’s say that there’s a correlation between religious devotion and socially conservative views (which isn’t always the case) – then what? A British Muslim who advocates banning homosexuality needs to be dealt with in exactly the same way as a British Catholic who advocates banning abortion – by arguing with their ideas. (Their ideas are rooted in their identities – but then, so are mine and yours.) And hence, too, that odd reference to British Muslims seeking assimilation and a better life, as if stepping out of the dark ages must mean abandoning your faith – or, at least, holding it lightly, in a proper spirit of worldly Anglican irony. Here, in fact, Cohen is a hop and a skip from forgetting about all the fractions and identifying the problem as Muslims tout court. Have a care, Nick – that way madness lies.
Those New Year music lists, in brief.
TWENTY ALBUMS OF 2008
…AND TEN TO LOOK OUT FOR IN 2009
Me, at the moment I’m mostly listening to Tony Capstick, James Yorkston, National Health and in particular Radiohead; thanks to Zavvi’s Looming Bankruptcy Sale, I recently acquired a copy of OK Computer, which I somehow missed out on in 1997, and which (although this probably isn’t news to anyone but me) is rather fine. In particular, I’m feeling the need to play “Paranoid Android” several times a day; what this says about my psychological state I’m not sure, but it’s probably nothing good. (In my defence, I do like a good bit of 7/4.) When that’s worn off I’ll probably move on to the rest of my bargain-bin gap-fillers, which are by Captain Beefheart, Dexy’s Midnight Runners, Jim Moray and Scott Walker. Or I might see if I can get the Last Shadow Puppets album cheap (the lads can’t actually sing, which is a real drawback for going up against those kinds of arrangement, but that single that sounded a bit like Love worked OK, so maybe they can bring it off).
So no, I’m not in the market for anything by Little Boots, thanks very much.
A quick post to register a rather striking piece of news (via), which didn’t seem to get much notice in the British media. First, here’s the complete text of a piece on torture from the January 2008 Washington Monthly:
According to the latest polls, two-thirds of the American public believes that torturing suspected terrorists to gain important information is justified in some circumstances. How did we transform from champions of human dignity and individual rights into a nation of armchair torturers? One word: fear.
Fear is blinding, hateful, and vengeful. It makes the end justify the means. And why not? If torture can stop the next terrorist attack, the next suicide bomber, then what’s wrong with a little waterboarding or electric shock?
The simple answer is the rule of law. Our Constitution defines the rules that guide our nation. It was drafted by those who looked around the world of the eighteenth century and saw persecution, torture, and other crimes against humanity and believed that America could be better than that. This new nation would recognize that every individual has an inherent right to personal dignity, to justice, to freedom from cruel and unusual punishment.
We have preached these values to the world. We have made clear that there are certain lines Americans will not cross because we respect the dignity of every human being. That pledge was written into the oath of office given to every president, “to preserve, protect, and defend the Constitution.” It’s what is supposed to make our leaders different from every tyrant, dictator, or despot. We are sworn to govern by the rule of law, not by brute force.
We cannot simply suspend these beliefs in the name of national security. Those who support torture may believe that we can abuse captives in certain select circumstances and still be true to our values. But that is a false compromise. We either believe in the dignity of the individual, the rule of law, and the prohibition of cruel and unusual punishment, or we don’t. There is no middle ground.
We cannot and we must not use torture under any circumstances. We are better than that.
– Leon E. Panetta
This kind of self-congratulatory American visionary liberalism sets my teeth on edge, I have to admit – “We are better than that”? Really? – but at least here it’s being invoked against the barbarities of power, not as a cover for them. And these particular barbarities have flourished exuberantly over the last seven years, so it’s refreshing to hear any sign of unyielding opposition to them from within the US establishment, however syrupy the rhetoric.
Anyway, about that news story. From the 5th January New York Times:
President-elect Barack Obama has selected Leon E. Panetta, the former congressman and White House chief of staff, to take over the Central Intelligence Agency
Obama’s going to let us down – oh, how he’s going to let us down. (I’m particularly not looking forward to his first statement on Gaza.) But this is seriously good news – better than I’d ever have expected.
“We cannot and we must not use torture under any circumstances. We are better than that.”
Leon Panetta, the next head of the CIA.
Vice President Cheney I think continues to defend what he calls extraordinary measures or procedures when it comes to interrogations and from my view waterboarding is torture. I have said that under my administration we will not torture
our United States military is under fire and has huge stakes in getting good intelligence. And if our top army commanders feel comfortable with interrogation techniques that are squarely within the boundaries of rule of law, our constitution and international standards, then those are things that we should be able to (INAUDIBLE)
Perhaps more significantly, Bush administration appointee Susan Crawford, 14/1:
“We tortured [Mohammed al-]Qahtani,” said Susan J. Crawford, in her first interview since being named convening authority of military commissions by Defense Secretary Robert M. Gates in February 2007. “His treatment met the legal definition of torture. And that’s why I did not refer the case [for prosecution]”.
Something’s changing out there. The fundamental point is that there is a difference between interrogation and torture: interrogation is about extracting information, but torture is about breaking people. And when a person’s broken they can’t give reliable testimony. This, I think, made Guantánamo Bay too much of an anomaly for even Bush’s attack lawyers to assimilate into legal normality. Give waterboarding – or stress positions, or hooding and white noise in a white room – what names you like, there is still such a thing as torture; it’s defined by its effects, and its key effect is to nullify a suspect’s legal personhood. Under Bush and Cheney that was a small price to pay: it also made terrorist suspects safe, after all, and it might produce some usable intelligence along the way; the rest was just a question of human warehousing. For Obama – as for ‘lifelong Republican’ Crawford, and doubtless many more like her – it’s just not how it’s done.
I like that ‘(INAUDIBLE)’, though.
Answer me this: after receiving gifts on Christmas Day, what is it that children proverbially do with them within 24 hours? Do they (a) break them or (b) give them away?
Fairly straightforward, I think you’ll agree. Now let me put to you a second and superficially unrelated question. When a man loves a woman, as we know, he can’t think of nothing else; he will, indeed, trade the world for the good thing he’s found. But if he should happen to entrust his heart, metaphorically, to someone undeserving of his affections, what is the uncaring female proverbially said to do with it? Does she (a) break his heart or (b) give his heart away to someone else (this could perhaps take the form of fixing him up with a friend)?
I think it’s clear that option (a) is appropriate in both cases. So if one were to write a Christmas song likening these two situations, it would be sheer perversity to write anything other than
Last Christmas, I gave you my heart
And the very next day you broke it
See? See? It makes sense now! Honestly, if they’d got that right in the first place it could have been a big hit.
Update It has been brought to my notice that there are strong reasons to object, even in theory, to the notion of a daily round of Christmas-themed celebration. The obvious objection to a daily Christmas is that this would rapidly have adverse effects in terms of exhaustion, obesity, alcohol poisoning and so forth. However, these effects could easily be mitigated, or even eliminated, by simply varying one’s level of indulgence in Christmas cheer and jollity, over the weeks and months of perpetual Yule. A less tractable problem is presented by the irreducible necessity of preparation. When, under the daily-Christmas regime, would any of us have time to buy food, presents, cards, bottles of winter ale, bags of Bombay mix and other such essential accoutrements of the season? I feel that this objection has considerable force, and would therefore propose that any future songwriter working in this thematic area should write something along the lines of
I wish it could be Christmas every other day
Once again, I think you’ll agree that this would represent a considerable improvement.
Ho ho ho.
(Updated Christmas Eve, after spotting a flaw in my statistical analysis. I am deeply sad.)
Now that it’s well and truly over, two things really stick in my mind about the Manchester Congestion Charge vote. (Strictly speaking, the Manchester Transport Innovation Fund vote – but I don’t think it’s a fund that we voted to reject.)
One is the sheer strangeness of the Yes campaign. As you’ll already know if you live anywhere in Greater Manchester, this was a huge campaign. The public transport companies were in favour anyway, so you couldn’t get on a bus or a tram without being invited to vote Yes. But you couldn’t wait for a bus – or look out of the window once it started moving – without your eyes being met by the dull-eyed, faintly reproachful gaze of the Vote Yes People. (Click around the site for more. Perhaps not late at night.) They were everywhere. According to that Web site, the campaign was sponsored by TCS (a property company) and Practicus (an ‘interim management’ company, which seems to be something like middle-management recruitment only not quite; perhaps you don’t get an actual job at the end of it). Those two companies must be doing remarkably well, to have all that money to spend on someone else’s publicity; clearly names to watch. From the Vote Yes campaign’s point of view, though, I do wonder that nobody seems to have considered the potential downside of this level of saturation publicity. People don’t generally like being told what to do, least of all by spud-faced pod-people who purport to represent them.
Perhaps it wouldn’t have been so bad if the content of the campaign had been different. There were three waves of pod-people posterage, each a variation on the basic theme of What An Ordinary Manchester Person Is Thinking. (And ‘thinking’ is the word: nobody was actually speaking in those pictures. Look into my eyes! Hear my thoughts!) The first wave was the deeply annoying “I won’t be paying” theme. This wasn’t encouraging civil disobedience (which would probably be fairly futile with the level of surveillance required by the scheme). Rather, it was based on the idea that most people wouldn’t be making car journeys which would be hit by the charge – supposedly ‘eight out of ten people wouldn’t pay’ – and therefore most people ought to vote Yes.
This was a bad approach on so many levels. On the face of it, it was a straightforward appeal to self-interest: you want better public transport? you don’t want to pay more? lucky you, you won’t have to! But anyone who was already concerned about the charge, or suspected that they might be affected, had already had ample opportunities to do the sums for their own situations. (Full disclosure: I worked out that I’d be charged once a week. I really resented that.) Even if only 20% of the population was likely to be charged – and I’m sure people like me, incurring weekly charges, weren’t included in those calculations – the appeal to self-interest, for those people, would immediately backfire: saying that four out of five people wouldn’t pay isn’t much of a selling-point if you’re number 5.
For anyone who hadn’t given the charge much thought, on the other hand, the campaign could almost have been calculated to raise suspicions – precisely because of that weird and phony “we are ordinary people like you” framing. I won’t pay, says an actor representing a typical Manchester resident, because I only go into town at the weekend / I get to college by bus / I never go out of the house (I may have made up the last one). I suppose our reaction to these was supposed to be “good for us – tough luck on those people who insist on commuting by car”. Actually my instinctive reaction was “good for fictional you, but what about me?” If you’re going to appeal to self-interest, you need to get the story straight – once you start thinking in terms of “can I get something for nothing?”, you’re also thinking “am I going to get ripped off?”
The second wave was all about fairness. This time the pod people had talking points that they were mulling over (although where they got them was a mystery to me – the publicity about the actual details of the scheme was woefully limited). The emphasis was on the commitment to get the improvements to public transport into place before the charge came in; a typical poster read “Bus fares are frozen, and then the charge comes in? Sounds fair to me.” This wasn’t as actively repellent as the first phase, but it was extraordinarily weak – what do you mean, it sounds fair to you? What is this imitation of reasoning – are you saying it is fair or not – and if not, why not? Come to think of it, what’s fairness got to do with the timing of the introduction of the charge? There’s no sense in which the benefits gained in the first couple of years offset the costs imposed from that point on. Once again, this “we are ordinary people” approach provokes the very suspicions it’s apparently meant to allay – maybe it sounds ‘fair’ to you, mate, but to me it just sounds like a sweetener… And, once again, the underlying appeal is not to collective benefits or to fairness (despite the language), but to self-interest. Two years benefits upfront, free of charge? I’ll have some of that. What would genuinely sound fair would be “We’ll pay more when we drive at peak times, but we’ll get the benefit when we use public transport” – but that message never appeared.
The idea of actually paying the charge did surface in the third and final stage of the campaign, but yet again the appeal was to individual self-interest. The message here was “I want to [get from A to B quickly]. That’s why I’m voting Yes.”, with examples ranging from getting to the building site on time to putting the kids to bed. I don’t mind paying, the logic runs, because I know that other people won’t want to pay, and so the roads I drive down will be much clearer. Essentially this was the “get the plebs off the road” phase of the campaign. It seems to tap into the same vein of narcissistic fantasy that brought us the remake of Survivors – What if everyone stopped using their cars to get to work except me? Wouldn’t that be brilliant?
This isn’t a full picture of the Yes campaign; there was some publicity which focused on improvements to public transport. More to the point, a lot of the actual campaigning went on by word of mouth, and here the idea that the charge might be paid for in collective benefits did get an airing. Overall, though, the Yes campaign was woeful as well as creepy. What it was trying to get us to do was assent to an additional tax, for the sake of benefits which (by government decree) couldn’t be funded any other way. The question, in other words, was “do you agree to start making a payment you’ve never had to make before and carry on paying it indefinitely, with no guarantee that the scheme won’t be extended or the toll increased, for no reason except that that’s the only offer on the table?” (The TIF was to consist of a £1500 million grant plus a £1200 million loan, a quarter of which would need to be spent on setting up the machinery to administer the scheme. And no, we couldn’t just have the £1500 million.) It appeals to a certain combination of public-spiritedness and submissive ‘realism’: you can say “yes, because I believe the investment in public transport will be worth it, and besides it’s the only offer on the table” or “yes, because I believe we should be encouraged to use our cars less (and besides…)”, but those are arguments for agreeing to a collective tax, arbitrarily imposed, in return for collective benefits. There’s just no way to sell a Yes vote in terms of individual self-interest, and it was pretty shabby of the Yes campaign to make the attempt.
The other thing that struck me about the campaign was the consistency of the voting figures, with one interesting exception. There are ten boroughs within the old Greater Manchester region; the plan was to implement two charging zones, one following the M60 and an inner ring further in towards the centre (not far enough in for my liking, but that’s by the way). Out of the ten boroughs, Bolton and Wigan are entirely outside the M60, and Rochdale almost entirely; these three boroughs presumably have the largest proportion of people who would be completely unaffected by the charge. Bury, Oldham, Tameside, Stockport and Trafford are all crossed by the M60. Manchester and Salford, finally, are divided both by the M60 and by the inner ring.
Here are the voting figures. I’ve given the percentage turnout and the No vote (as a percentage of those who voted). The dotted lines represent percentages across all ten boroughs. (Region-wide turnout: 53.2%; region-wide No vote: 78.8%.) I’ve graphed the No vote because it turns out that there was very little variation in the Yes vote, calculated as a percentage of eligible voters: 4% in total (from a low of 8.9% to a high of 12.8%), with six boroughs within 0.5% of the overall figure of 11.3%.
Here are the same figures, normalised around those region-wide percentages: 90% means ‘90% of the regional percentage turnout/No vote’.
And here are the percentages again, sorted by No vote rather than by turnout.
What do we see? The first thing is that turnout was respectable everywhere (the Wigan low of 45% would be very good for a local election) and better than that in a few places (over 60% in Tameside and Trafford). The second is that the No vote was overwhelming (and the Yes vote miserable) pretty much everywhere: the No vote ranged from 84.5% in Salford all the way down to 72.2% in Manchester. This wasn’t a multiple-choice question or a choice between several candidates: 27.8% of people who voted in Manchester voted Yes, and 72.2% voted No. For the proposal to pass, the vote had to be over 50% in seven out of ten boroughs; it didn’t even reach 30% in one.
Then there’s the correlation of turnout and No vote, which is particularly striking in the third graph: three boroughs had a below-average No vote and a below-average turnout; six had an above-average turnout and an above-average No vote. (Bolton was in between.) Look at the first graph and compare Trafford, Tameside and Stockport (crossed by the M60) with Rochdale, Bolton and Wigan (outside the M60). Outer boroughs: low turnout, relatively low No vote. Inner: high turnout, relatively high No vote. As I noted above, the Yes turnout varied between 8.9% and 12.8%, for an overall average of 11.3%. There was much more variation in the No turnout, which was 41.9% across the area, but ranged from over 50% in Trafford and Tameside to just over 33% in Wigan and Manchester. (Trafford also had an above-average Yes turnout, at 12.5%. I guess they just take voting seriously in Trafford.) There seems to be a definite correlation with geography; it looks as if, where geography made a difference, the difference was both that the congestion charge interested fewer people (lower turnout in outer boroughs) and that those who bothered to vote were more motivated by self-interest (lower No vote in outer boroughs). In short, the geographical patterning of the Yes vote is highly suggestive of an appeal to self-interest, while the overall level of the Yes vote suggests that this appeal has very little power to mobilise.
Lastly, there’s a glaring exception to this correlation: Manchester, the borough covering most of the city centre and hence the only borough, apart from Salford, which is crossed by both inner and outer charging rings. Salford has the record No vote, at 84.5%; turnout was a respectable 57%. Manchester, by contrast, is out there with Wigan: a turnout of only 46%, of whom 27.8% voted Yes. Clearly, the model which explains the differences between inner and outer boroughs in terms of individual self-interest can’t deal with these figures.
I haven’t got an explanation, either for the high Yes vote or for the equally puzzling low turnout. Anecdotal evidence suggests that Manchester (or at least South Manchester) may have an unusually high concentration of people sympathetic to the aims of the Congestion Charge, or of non-drivers, or both. As for the low turnout, Manchester City Council hasn’t changed hands since 1974; the council’s motto is Concilio Et Labore, and it is. Perhaps conditions like that – compounded by the fug of neo-Blairite ex-municipal-socialist hortatory corporate righteousness which has enveloped the Town Hall for the last decade – tend to promote cynicism and disengagement: they’ll do it anyway, so why encourage them? The day the vote came through the Manchester Evening News results page included a poll: “Is the Congestion Charge dead and buried?” When I looked at the page, votes were running 4:1 in favour of “It’ll be back in some form”. White Van Man won’t resist the Future forever. (And a Merry Christmas to you too, Mr Leese sir!)
Belatedly, a bit more Bingham. (Updated 30/11.) And a question: what, exactly, was Martin Kettle saying in this column?
What’s most remarkable about the column is that Kettle doesn’t actually contest the argument Bingham put forward. Instead, there’s a steady drip-feed of insinuations that Bingham’s speech shouldn’t be taken seriously, whatever it was he actually said (he’s retired! the speech was provocative! Peter Goldsmith disagrees with it!). Then there’s a suggestion that it doesn’t have any bearing on the real world:
There are, moreover, two important practical objections to Bingham’s view. The first, as he acknowledged in his lecture, is that international law is hard to enforce. Its rules are regularly honoured in the breach, not least but not only by the US, which has been involved in some 40 military actions against sovereign states in the past quarter century. The second is that, in practice, the security council may be incapable of authorising otherwise legally justifiable military action because China or Russia will use their veto to prevent it. In practice, therefore, Bingham seems to be in danger of arguing that lawful military action is military action that Vladimir Putin permits – a position that would make international law an ass.
The first of these points can be quickly disposed of; the argument seems to be that the statement “the US has violated international law” is invalidated by the observation that the US has repeatedly violated international law in the past. This objection only really makes sense if we believe that the way lawyers think about international law should be conditioned by the way the Reagan and Bush governments have thought about it. More generally, it’s quite possible to argue that international law is meaningless, powerless or irrelevant, but those arguments aren’t usable against any particular statement within the field of international law. If international law is irrelevant, Bingham’s entire speech is irrelevant and doesn’t deserve to be taken seriously. There are traces of this Know-Nothing position in Kettle’s column, notably in the series of assorted jeers which serve as an introduction, but clearly it’s not a position he’s willing to commit himself to.
The second point seems a bit more substantial, but in fact betrays a similar misunderstanding of international law. No, international law doesn’t get anything done except by agreement among sovereign states, but that’s the nature of international law. Yes, lawful military action is military action approved by the government of Russia – and by the government of the USA, and by the governments of the rest of the states represented on the Security Council. The notion of otherwise legally justifiable military action is meaningless: whatever the grounds on which it might in theory be justifiable, military action is legally justified at the point when it’s approved by the Security Council, and not before. What Kettle seems to be hankering after is a kind of unilateralist version of international law: law as a set of principles (liberty, democracy, justice and so on), which could be invoked to justify lawful military action by any state, or group of states, without waiting to gain international agreement. This makes perfect sense, as long as we consider the purpose of international law to be that of maximising international conflict.
But it’s with Kettle’s conclusion that things get really strange. What – and it’s a genuine question – is he actually saying here?
The importance of Bingham’s lecture is not that Britain’s most distinguished lawyer has finally had the opportunity to say that Blair’s war in Iraq was illegal – though that isn’t insignificant. Its real importance is in pointing to the paradoxical fact that a major legacy of Iraq has been the boost it has given to the rule of law and to the wider process of codification in international affairs. As Bingham himself said towards the end of his compelling lecture, it is unlikely that states chastened by their experience in Iraq will be eager to repeat it. While they have not been hauled before the ICJ or any other tribunal, these states have been judged unfavourably by public opinion and thus their standing has been damaged.
The Iraq war was unnecessary and unwise. It may also have been unlawful. It is also, to all intents, over. Yet whether it was unlawful or not, the reality is that the states and the individuals who undertook it have been haunted by it ever since and may continue to be. An epochal public judgment has been made, even if it has not been made by a judge in a courtroom.
That judgment will forever haunt one man in particular. George Bush gives every impression of never wishing to leave the confines of Texas ever again in his life. But as he prepares to depart the White House he too will be diminished as all retiring leaders must be. In particular he will lose his mantle of presidential immunity.
It would be remarkable, right at this moment, if White House lawyers were not actively rehearsing the national and international legal position of the president and his lieutenants. This is the scorched earth, document-shredding period of the Bush presidency and it is possible, though improbable, that Bush may even seek a pardon for himself as Richard Nixon did a generation ago. In a roundabout way it is a gratifying reminder that, in the end and as Lord Bingham has spent a lifetime proving, the law is always bigger than all of us.
First, “a major legacy of Iraq has been the boost it has given to the rule of law”. Then, “these states have been judged unfavourably by public opinion … An epochal public judgment has been made, even if it has not been made by a judge in a courtroom.” But as a result of this judgment, apparently, Bush may end up facing a judge in a courtroom, and that’s “a gratifying reminder that, in the end … the law is always bigger than all of us”.
I think the key to this odd passage is that weaselly half-concession, It may also have been unlawful. The legal status of the Iraq war seems to exist for Kettle in a kind of quantum superposition – at some future point we may have found out whether the war was legal or not, but until then it remains both legal and illegal, or possibly neither legal nor illegal. There are three ways to read this contradiction, all of which find some support in the column. One is straightforward, bare-faced inconsistency: the war is legal in one sentence, illegal in the next. Kettle 1 argues that, although people said the Iraq war was illegal, it was actually legal because it was a good thing. However, the results of the war have turned out to be a bad thing, which shows that in fact the war was probably illegal. But that means we can still say it was a good thing, because it’s made it more likely that states won’t wage illegal wars in future.
Clearly, the problem with this reading is that it’s blatantly self-contradictory and makes your head hurt.
Kettle 2 resolves the contradiction slightly more coherently: the war on this reading was illegal, but it indirectly, and ironically, promoted legality. Kettle 2 concedes that the people who said the Iraq war was illegal were probably right all along. But it’s still a good thing the British and US governments didn’t listen to them, because they didn’t believe that the war was illegal. The invasion and its disastrous consequences are thus indirectly a good thing, because the massive unpopularity of the war will make governments pay more attention to arguments about international law from now on.
This reading makes a bit more sense; the only problem is that nobody in government (or in opposition, come to that) is actually saying anything that suggests they might have learnt a chastening lesson from Iraq, or that they take international law any more seriously than Tony Blair did.
Kettle 3, finally, reframes the contradiction by dividing international law, and hence legality, into a set of goals and principles (good) and a set of institutions and mechanisms (bad, or rather irrelevant). The war was illegal in one sense – in the sense that international lawyers said so – but in another sense it was legal, in that it furthered the goals of law. This, it’s worth noting, is not another would you rather have Saddam back in charge? argument about the benefits of the war; for Kettle 3, the war has made the world a more lawful place through its adverse effects. The reason why it’s a good thing that the invasion went ahead is that the reaction of global public opinion has influenced the British and US governments, in ways that the doomsaying of powerless international lawyers never could. (I seem to remember that global public opinion had a bit to say about the invasion before it had even happened, but set that aside. As Daniel Davies says, very often “if only we’d known then what we know now” really means “if only I’d known then what you knew then”.)
The problem with this reading is precisely this divorce of ends and means: the claim is that the war has given a ‘boost’ to international law because some of the aims of international law have been achieved by other, non-legal means. It’s a bit like saying that a lynching which is followed by a drop in crime has given a boost to law and order. Law doesn’t have aims which can be achieved by other means; to respect the law is to commit oneself to using legal means. In international law – which is perhaps the most underdeveloped area of the law, and particularly interesting for that reason – these means are grounded in voluntary international co-operation; there is no supranational enforcement agency. For a state to commit unilateral aggression is thus not only to break the law but to undermine the rule of law.
But this is only one possible reading of a very strange column, and alternative readings are entirely possible. I give you Kettle 1, a handy phrasemaker whose arguments collapse under their own weight; Kettle 2, a cynical realist about the past and a dewy-eyed optimist about the future; and Kettle 3, who believes in the rule of law as an aspiration, and believes that the best way to establish it is to break the law we’ve got now. Take your pick.
it was clear soon after 9/11 that the Bush administration … believed that the awesome demonstration of American military muscle would intimidate present and potential enemies everywhere. The administration had its own intellectual cheerleaders and experts on the Middle East: Bernard Lewis, for instance, whose pet conviction that ‘in that part of the world, nothing matters more than resolute will and force’ was validated by the swift capitulation of the Taliban. Iraq was logically the next target. As the columnist Thomas Friedman told Charlie Rose, what the Iraqis ‘needed to see was American boys and girls going house to house, from Basra to Baghdad, and basically saying: “Which part of this sentence don’t you understand? You don’t think, you know, we care about our open society, you think this bubble fantasy, we’re just gonna let it grow? Well, Suck. On. This.”’
Which part of this sentence? Well, the grammar, for a start – it seems to make the most sense if you take out that first ‘you know’ and substitute a question mark for the comma after ‘society’, but there are a few possible readings.
If the word order is mangled, the sense is pretty clear: what Iraq needed wasn’t liberation so much as harrowing, to be carried out by a kind of frat-boy Khmer Rouge. (“Suck on this”, by crikey. What is it with fellatio and humiliation in American rhetoric?) It’s just a dream – the US Army doesn’t have the manpower to go house to house, from Basra to Baghdad; it’s hard to imagine an army that would. But that basic unreality lends it power – once you start thinking if only we had ten times as many men on the ground, then our boys could sort it out! you’re not going to look kindly on any attempt to set limits to what the troop numbers actually are, or to what the troops can actually do. Fantasy lawlessness has a way of eroding real-world law.
Coincidentally, the same day I read that, I saw Lord Bingham’s response to Lord Goldsmith in the Telegraph:
In his full written advice to the Prime Minister of March 7, 2003 — not made public at the time — Lord Goldsmith QC considered that resolution 1441 could, in principle, revive the authority to use force contained in resolution 678 and suspended, but not revoked, by resolution 687. At that time, though, it was not clear to him whether the use of force required merely a discussion by the Security Council or a further resolution.
Summarising Lord Goldsmith’s reasoning, Lord Bingham said: “A reasonable case could be made that resolution 1441 was capable in principle of reviving the authorisation in resolution 678, but the argument could only be sustainable if there were ‘strong factual grounds’ for concluding that Iraq had failed to take the final opportunity. There would need to be ‘hard evidence’.”
Ten days later, in a Parliamentary written answer issued on March 17, 2003, Lord Goldsmith said it was “plain” that Iraq had failed to comply with its disarmament obligations and was therefore in material breach of resolution 687. Accordingly, the authority to use force under resolution 678 had revived. The former judge then quoted the conclusion to Lord Goldsmith’s Parliamentary statement: “Resolution 1441 would, in terms, have provided that a further decision of the Security Council to sanction force was required if that had been intended. Thus, all that resolution 1441 requires is reporting to and discussion by the Security Council of Iraq’s failures, but not an express further decision to authorise force.”
Lord Bingham was not impressed. “This statement was, I think flawed in two fundamental respects,” he said. “First, it was not plain that Iraq had failed to comply in a manner justifying resort to force and there were no strong factual grounds or hard evidence to show that it had: Hans Blix and his team of weapons inspectors had found no weapons of mass destruction, were making progress and expected to complete their task in a matter of months. Secondly, it passes belief that a determination whether Iraq had failed to avail itself of its final opportunity was intended to be taken otherwise than collectively by the Security Council.”
After reading a draft of Lord Bingham’s speech, Lord Goldsmith said he remained of the view that his conclusion was correct. “I would not have given that advice if it were not genuinely my view,” he told the telegraph.co.uk law page. Why, though, did his views appear to harden between March 7 and March 17? “Having rightly expressed caution in my earlier advice, I had formed the view during the week before the 17th that it was my job to express a clear judgment one way or the other.” Civil servants and military commanders had wanted a clear answer. “Either it was lawful or it was not,” Lord Goldsmith explained. “It could not be a little bit lawful.”
As an aside, Bingham seems unimpressed by the ‘I really believed it’ defence:
“Lord Goldsmith emphasises that he believed the advice which he gave at the time to be correct — which I have not challenged — and remains of that view.”
(Emphasis added.) I guess it’s a backhanded tribute to the anti-war movement – all those ‘Bliar’ posters must really have hit a nerve. But Bingham’s right to dismiss it as a side-issue. In law, “I didn’t mean to do it” is a defence of sorts, but an “I genuinely thought it was a good idea” defence would get you nowhere.
The big question here, and the one which really goes to Goldsmith’s competence as a legal advisor, is that last one: Why, though, did his views appear to harden between March 7 and March 17? Goldsmith’s explanation is superficially plausible but, on a closer reading, alarmingly unsatisfactory. Yes, it was his job to express a clear view about the proposed attack, and no, it couldn’t be a little bit lawful – but that’s not to say, as Goldsmith implies, that legality is an on/off property which is either present or not. A judgment on the action’s legality – not whether it would be lawful in some absolute sense, but whether it passed a threshold above which it would be lawful enough – was always going to be made. Between the 7th and 17th of March Goldsmith seems to have decided, firstly, that he was going to make that judgment himself rather than leaving it to the politicians; and secondly, that he would make it on the basis that the action would be legal unless it was clearly illegal: a little bit lawful was lawful enough. It’s debatable whether it’s appropriate for the government’s senior lawyer to spare the politicians the complexities of legal advice by offering them a simple yes/no recommendation, particularly on a decision of this importance. But it’s staggering, even now, to realise that in making this recommendation he didn’t err on the side of caution, treating the action as illegal unless it was clearly legal. Accepting for the sake of argument that removing grey areas was part of Goldsmith’s job, the question here was surely “is it more or less white?”, not “is it not entirely black?”
It gets worse. Why did Goldsmith adopt an aggression-friendly reading of resolution 1441?
Having spoken to those who negotiated the terms of the resolution, Lord Goldsmith was sure that the need for a further determination had been deliberately omitted. US diplomats would not have agreed to resolution 1441 if they thought it allowed other members of the Security Council to block military action by requiring a second resolution that might be vetoed.
Brian sums up what Goldsmith’s suggesting and is appropriately sceptical:
[The government] argues that during the secret negotiations of the text of resolution 1441, Russia and France and other Council members originally wanted the resolution to specify that the Council should take a further “decision” on what to do if Iraq continued to fail to comply with its obligations: and that by agreeing to abandon that language in favour of a requirement that the Council should merely “consider the situation” (as in the text eventually adopted), they accepted that force could be used by any state without the need for a further “decision” by the Council. There is no public record of the “negotiating history” of 1441: all we have is Lord Goldsmith’s account of it, based on his private discussions with the British and American participants. [A] public inquiry should seek to establish whether the Russian, French, German and other governments agree with this interpretation, which seems at first sight far-fetched: as Lord Bingham said, it “passes belief”.
But I think scepticism’s only half of the story. Let’s assume for the moment that Goldsmith’s account is true, or at least that he believes it to be true. (As I said earlier, I don’t think proclaiming yourself not to be a liar is a defence against anything very substantial, but it’s a defence that’s readily available to almost anyone; as a result, challenging someone’s sincerity is a good way to give them an easy win.) What does it tell us about how Goldsmith approached his job? Here’s a lawyer ruling on the legality of an action, basing his decision explicitly on three UN resolutions (678, 687 and 1441). Lawyers interpret legal decisions; it’s a large part of what they do. But Goldsmith’s interpretation of the crucial resolution 1441 isn’t based on a natural-language reading; it’s not based on precedent, either, or even on the lawyer’s standby, the appeal to the interpretation of a ‘reasonable person’. Goldsmith arrives at a borderline perverse reading of 1441 – one which the text of the resolution barely supports at all – on the basis that, if the Americans had subscribed to any other reading, they wouldn’t have let the resolution pass. In short, Goldsmith’s reading was driven by his knowledge of what the US government wanted. A drive to war in Iraq was well under way, fuelled and even to some extent steered by proto-fascist fantasies like Friedman’s. Goldsmith’s approach, on his own admission, was not to bring the law to bear on the drive to war, but to take the drive to war as read and interpret the law so as to fit it. This strikes me as a disgraceful abdication of duty (to the law, not to the government – he served them faithfully). It’s only surprising that he admits to it so readily.
Meanwhile in another part of the forest, a legal authority I’ve got rather more time for at the moment is Nigel Simmonds, whose Law as a Moral Idea is currently giving my brain some useful exercise. This rather lovely formulation is from the book’s Preface:
I am also indebted to [names omitted]. A more intelligent author could perhaps have accommodated their various criticisms and insights, to the considerable improvement of the book’s argument. This author, however, has had to rest content with the imperfect pages that now lie before the reader.
I must remember to borrow that.
Not a lot of blogging around here lately. There are a number of reasons for that, not all of which I’m entirely aware of, but one factor has got to be work.
Which reminds me, indirectly, of Jonathan Coe’s second novel, A touch of love. Two extracts:
Friday 4th July, 1986
‘Some years ago – I don’t know if you remember – I defended this man called Fairchild. Hugh Fairchild. He was being prosecuted by the DHSS for fraud. He’d finished his Ph.D., and he was doing a bit of teaching at the university, earning about ten pounds a week or something, only at the same time he was claiming the dole. So the DHSS finally cottoned on to this and they asked for everything back. It wasn’t very much, a few hundred pounds or so, but it was far more than he had, and it actually looked for a while as though he might have been facing some kind of jail sentence. … So he pleaded guilty of course, and then I got this quite convincing case together and we managed to get him off with a fine and negotiate quite a sensible repayment programme. Which, so far as I know, he’s still in the middle of.’ She frowned. ‘Four years ago, now, at least. Strange how time goes, isn’t it?’
Friday 19th December, 1986
It was at last beginning to dawn on Hugh that he would never find an academic job. The realisation had made its inroads slowly, like the winter weather, and he had developed the same way of coping with both, namely lying in bed for as long as possible, with the gas fire turned up to top heat. Half the time he would doze, half the time he would be wide awake, staring frog-eyed at the ceiling, his hand resting absently on his genitals. In this position, in order to avoid thinking of the future, he would think of the past. He would rehearse the proudest episodes of his life and compare them with his present state of stifled inertia: his graduation … the flush of intellectual excitement in which he had completed his MA thesis … the second graduation ceremony, at which he had been awarded his doctorate.
But always at the front of his mind there festered the knowledge that these events had taken place a long time ago. They had all occurred within a period of eight years, and since then nearly the same period had elapsed, and in all that time nothing had happened. Not a solitary highlight. … That day of triumph in Coventry cathedral seemed neither recent nor distant; it seemed, if anything, to belong to a quite different level of existence. His life now comprised other realities: the hiss of the gas fire and the heavy warmth of his bedroom; the texture of pubic hair as he twined it around his index finger; the smell (to which he had long since become immune) of the unwashed socks and underpants stashed under the bed; and the daily routine of forcing himself, at about 2.30, out of his bed, out of the flat, onto a bus and onto the university campus, in search of a kind of companionship.
For what it’s worth, I enjoyed the book a lot, and would recommend it to anyone who’s liked anything else by the subsequently much more successful Coe. (I say ‘book’ rather than ‘novel’, which I’m not sure it is, quite.) The way Hugh’s character develops in these extracts from light comedy to extravagant grotesquery and on to a kind of grim pathos is typical of the skill & heartlessness with which Coe writes, or used to write. ‘At the front of his mind’ is good, too. (Digression on Coe’s ‘heartlessness’. It’s an odd style, which seems to be heavily influenced by Beckett’s first couple of novels; it combines a numb, depressive certainty that things are only going to get worse with a driven, determined and often really ingenious playfulness. You feel for his characters, but you don’t always connect with them as people. Coe’s earlier books are more heavily dominated by this style; his first novel, An accidental woman, is at once excruciatingly sad and infuriatingly arch. Something shifts with the fourth, the magnificent, unrepeatable What a carve-up!, where (as Justin reminded me in comments) the same hopeless world-view is felt from within as well as being played for laughs.)
But that’s not what I wanted to talk about. My question is: what is this man living on? If he’s earning money from teaching, it must be teaching that can be done after 2.30 p.m. and without any preparation – and there’s not much like that. He hasn’t got any money saved up and his teaching pay, such as it is, isn’t being supplemented by the DHSS – on the contrary, he’s paying them. (Either that or he’s not doing any teaching at all and his benefit’s being docked at source. Either way, he’s not exactly flush.) We can make allowances – maybe he doesn’t always stay in bed till 2.30; maybe he gets a lot done on Tuesdays and Wednesdays, then spends the rest of the week vegetating in bed and mooching around campus... The trouble is, scaling back Hugh’s grotesquery for the sake of realism would deprive him of his pathos as well: he’s not doing that badly – at least he’s got a bit of money coming in, and he’s only having to work a couple of days a week…
I read this passage shortly after starting on Coe’s fascinating biography of B.S. Johnson, and it reminded me of Johnson’s doctrine of truth in the novel – ‘telling stories is telling lies’. It’s a dour and forbidding credo for a novelist; the results are only interesting in Johnson’s case because, in Johnson’s case, they’re so weird, in ways which don’t seem to be related to the ‘truth’ policy (although they may be related to what drove Johnson to adopt it). Nevertheless, the more I think about Hugh the more I think Johnson had a point. The character’s obviously meant to be representative of a certain kind of academic dead-end, and of the general apathy anomie acedie ect ect of its inhabitants. The dead-end is located quite specifically, in England, outside London and in the 1980s; the implication is that it’s one that Coe observed (or narrowly avoided) in person. But the real Hughs can’t have spent every morning lying in bed for as long as possible, with the gas fire turned up to top heat; not every day, not for a period of years – nobody could. And if that’s not true…
(Hugh isn’t the central character of the book, by the way. I wouldn’t want to put you off.)
I guess that particular shoe wouldn’t pinch most readers; the idea of never find[ing] an academic job is of more than academic (ho ho) interest to me at the moment. I got my doctorate just over three years ago, which in turn was six years after I got my MA. I’ve been working in academia, for various values of ‘working’, for four years now; as I write I’m living on odd bits of teaching, supplemented by smaller bits of research and editing. This is going to go on in various forms for at least the next seven months, and hopefully into next summer. After that, we’ll be into the next academic year, and who knows?
But there’s not much of the hiss of the gas fire and the heavy warmth of his bedroom about it. I made a list last week and realised that – what with current teaching, research, next semester’s teaching and various other bits of stuff – my to-do list includes pressing short-term tasks in three separate subject areas, large and demanding medium-term tasks in another three areas, and longer-term commitments (some of them with definite due dates) in another four. There’s other research I could be doing – I can think of three papers I could be working on without pausing for breath – but realistically I could only do it if I had more hours in the day, and more headspace to park the ideas in. The time and space I’ve got all seems to be booked up.
Looking on the bright side, by the time I get to the next academic year I should be quite staggeringly employable – particularly if I can find a job requiring expertise in behavioural regulation in the criminal justice system, complaints against the police, contemporary Italian politics, desistance from criminal activity, drugs, the Italian Communist Party, political violence, the Semantic Web, social statistics and victims of crime.
(On second thoughts, preferably not all of those.)
The estimable Merrick declines to do the album-for-every-year-of-your-life thing, with some compelling reasons (and some truly horrible images). I think he’s got a point about the aridity of the list format; when I did mine I seriously considered going back afterwards and writing a paragraph or two about just how wonderful some of those albums are, and why if you don’t know them you’re missing out, and if you do you should probably listen to them again (I mean, Taking Tiger Mountain! the Homosexuals! Soft Machine Third! Blame the Messenger! Horses! Chill Out! Wilder! bloody hell, the Faust Tapes!) But the moment went, and besides, there would be no end to it – that’s eight albums I’ve pulled out without pausing for breath, and I could easily add another three or four.
So I liked Merrick’s proposed alternative:
The ‘one per year for your whole life’ thing is too much to ask to someone to write or read, but still, I think there’s the germ of a good idea there. Perhaps it’s to pick a year and reel off, say, five albums for it.
I note that the year I picked at random is the year I left school. I suppose it’s not surprising that, in a teenage intensity of focus, I’ve got some albums that the sharper, more knowledgable and more dismissive music lovers of the time would’ve passed on.
Yes, after all that meander, I think that’s it. Give us five albums from the year you left school. Not necessarily the five ‘greatest’, but five that really do it for you.
So there’s the buildup. The rest is something of a placeholder, I’m afraid. I’ve identified my ten favourite albums from the year I left school – 1978, which I think was quite genuinely a particularly good year for music – and I’m going to narrow them down to five by the novel technique of listening to them again. In the mean time, if anyone wants to beat me to the punch by taking up Merrick’s challenge themselves – Edinburgh Rob, maybe? – feel free.
Here are the contenders:
the Jam, All Mod Cons
Talking Heads, More songs about buildings and food
Magazine, Real Life
Buzzcocks, Another music in a different kitchen
Ultravox, Systems of Romance
Wire, Chairs Missing
Elvis Costello, This year’s model
Captain Beefheart, Shiny beast (Bat chain puller)
XTC, Go 2
John Cooper Clarke, Disguise in love
Three first albums, four second albums, two 3rds and one, er, 10th. Arbitrarily disqualified on the grounds that I didn’t actually get into them in 1978: Dylan, Street Legal; the Clash, Give ’em enough rope; Tubeway Army, first album; Pere Ubu, The Modern Dance and Dub Housing… Let’s face it, that was a very good year.
My worldview was formed in the 1970s, when (it seemed to me) there was no such thing as lifestyle: to say that personal choices mattered, were worthy of attention, was to say that the personal was political, which in turn connected those choices to a whole range of broader commitments. Because it all was connected, if you looked into it; there was no such thing as a ‘single issue’. Nuclear disarmament was linked to nuclear power, which was linked (via uranium mining) to apartheid South Africa, which was linked to Israel, which was linked to nuclear disarmament… and so on. Taking your lifestyle seriously meant that you took life seriously; if you got your veg from a wholefood shop, the chances were that you got your reading matter from a radical bookshop and your clothes (well, some of them) from a fair-trade outlet.
These days, of course, the radical bookshops are few and far between, but the wholefood shops and the fair-trade clothing outlets are doing good business. The general loss of faith in the political – specifically, in a Left that could actually change things – seems to have been compensated by a belief that the personal is political enough: spend your money the right way and you’ve done your bit. It may not actually, visibly, verifiably change anything, but it’s bound to do some good – and besides, it means you know you’ve done the right thing, and that alone is enough to make you feel better. It’s ethical consumerism as a source of emotional treats; you pay more for the Fair Trade label for the same reason you pay more for 70% cocoa solids, because it’s a luxury and it makes you feel good to be able to afford it. The consciousness of living an ethical lifestyle can even be a treat in itself, to go with other treats. We’ve got a food and drink festival starting here soon; its slogan is “Walk local, eat and drink global”. Think local, act global, in other words – food miles, working conditions, global division of labour, it’s all very complicated but at least if you leave the car at home you’ve done something.
It’s ethical tourism, in effect – and the tourism involved can be real as well as virtual.
Guardian Money section, 27/9/08, reader’s letter:
When I finished full-time work, my husband and I took three months off, starting in December, and travelled to Rajasthan (one month), Sri Lanka (another month), and Kerala in India for a third month. … We arrived in Sri Lanka a few days after the tsunami, when all the other tourists were leaving. It was the best part of our trip and we wrote a letter to the Guardian saying that a secondary disaster was taking place because there were no tourists to provide income for the locals. … [We] were charmed by how incredibly helpful everyone was, particularly the Buddhists in Sri Lanka, where people had lost everything.
I’m sure it was worth it just to see the look on their traumatised little faces.
Well, OK, I’m sure people did benefit from those tourists’ money. But on the larger scale these are surely problems that can’t be addressed in the smallest degree – that are more likely to be exacerbated – by means of a nice long holiday on the other side of the world. Third World poverty isn’t going to be alleviated by First World tourism, any more than climate change is going to be reversed by long-haul flights. Of course these are huge, intractable, complex problems, which one or two people aren’t going to be able to solve whatever they do with their holiday fund. But that’s exactly why lifestyle can’t be enough; that’s why, when we start to trace our spending choices back into the wider world, we need to keep pulling on those threads until we’re hauling in the ropes of structural exploitation and injustice. In other words, that’s why we have politics, and political parties, and mass movements.
At least, that’s why we used to.
All RIGHT! Whoo! Are there any LEGAL THEORISTS in tonight???
OK then. (Hi Rob!)
Here are some thoughts on regulation and the law. This is a slightly abbreviated version of a paper I gave at a seminar earlier this year, which I’m planning to write up at greater length for publication.
I’d like to examine the conditions which make it possible for regulation to be both just and effective, and the conditions which make it problematic. For clarity, I am defining regulation here as the continued monitoring of an actor’s actions, by an agency authorised to do so, on the understanding that deviation from declared expectations will be met with some form of corrective response. Regulatory monitoring is not itself a punishment and does not require the prior establishment of guilt; it may be entirely prospective rather than retrospective, carrying with it no stigma for the actor whose activities are regulated.
Regulation can have very different associations, depending in part on who is being regulated and by whom. We can distinguish between professional regulation, in which organisations which wield power within society submit to regulation by specialist agencies; behavioural regulation, in which state authority is brought to bear on relatively powerless individuals; and regulation from below, in which pressure from individuals regulates the actions of powerful agencies.
Much comment on behavioural regulation, as exemplified by anti-social behaviour (ASB) legislation, has been highly critical – and critical in ways which calls into question whether this type of approach should be dignified with the name of regulation. It has been argued that behavioural regulation, rather than modifying behaviour without penal stigmatisation, does in practice stigmatise and punish – indeed, that it tends to undermine established principles of criminal justice, singling out undesirables for fast-tracked punishment. Anti-social behaviour legislation is not unique in this respect. Parallels have been drawn with control orders (Macdonald 2007); like ASBOs, these single out specified individuals for restrictive treatment. This raises the question of whether the defects of the ASBO system are parallelled in the control order regime – or even whether they are implicit in any attempt to apply the regulatory approach to individual behaviour.
I’ll address these questions by way of some comments on ‘technical regulation’ from the Russian legal theorist Evgeny Pashukanis.
A railroad schedule regulates the movement of trains in a very different sense than, say, the law on the liability of railroads regulates the relationship of the latter with freight shippers. Regulation of the first type is primarily technical; the second primarily legal.
The basic assumption of legal regulation is … the opposition of private interests. … The conduct of people may be regulated by the most complex rules but the legal element in this regulation begins where the individualization and opposition of interests begins. … Unity of purpose is, on the contrary, the premise of technical regulation. Therefore the legal norms concerning the liability of railroads presume private claims, private individualized interests; the technical norms of railroad movement suppose a single purpose, e.g. the achievement of maximum freight capacity.
(Pashukanis 2001 (1924))
For Pashukanis, the law concerns itself above all with conflicts between private interests. A railway timetable may impose obligations on many different people, failure to meet which may reasonably be penalised; Pashukanis cites other examples of ‘technical regulation’ such as a troop mobilisation plan or a course of medical treatment. However, what is at issue in such a case is an individual’s failure to contribute to the realisation of a common interest, as in the case of a train driver who turns up to work five minutes late, and consequently causes a scheduled connection to be missed. While the train driver has impeded the achievement of a common interest in punctuality, there is no conflict of interests here: the train driver is not pursuing a personal interest in disrupting the system. The disruption caused by the driver’s failure to meet an agreed obligation can be dealt with, in Pashukanis’s terms, through technical rather than legal regulation – or in our terms, through regulation rather than the law.
Pashukanis argues that the domain of regulation is defined by the unity of purpose conferred by a recognised common interest. This emphasis chimes with much contemporary comment on professional regulation, which stresses the need for the regulatory standards to be embedded in the culture of the organisation being regulated. However, Pashukanis’s insistence that regulation begins where the law ends is an unsatisfactory starting-point for us. This assumption would also suggests that regulation is unavailable in any case where all parties are not united by ‘technical norms’ which suppose a common interest; this would effectively rule out behavioural regulation and severely limit the scope of professional regulation.
A way out of this impasse is suggested by Braithwaite’s celebrated formulation of responsive regulation. Most regulatory interventions, Braithwaite argues, should assume a ‘virtuous actor’ open to persuasion. Only if this approach fails should the regulator resort to deterrence, implicitly addressed to a non-compliant but rational actor – and only if this fails should a punitive approach be adopted, implicitly addressing an incompetent or irrational actor. Crucially, compliance at the second or third level should prompt the regulator to de-escalate the next time intervention becomes necessary. The more confrontational the intervention, the less often it should be used; hence the image of a pyramid.
Persuasive regulation – the ground level of the pyramid – is an appeal to the subject of regulation to present him- or herself as a ‘virtuous actor’. The assumption is that the regulator and the subject of regulation have a shared interest in recognising each other – and being recognised – as socially responsible. This interest may not be uppermost in the mind of the subject of regulation – hence the possibility of escalating to deterrence – but it’s worth a try. “The most irresponsible of us has a socially responsible self. Responsive regulation is a strategy for persuading the worst of us to put our best self forward.” (Braithwaite 2002: 21).
If the scope of Pashukanis’s ‘unity of purpose’ is broadened in this way, we can see how the scope of professional regulation can be broadened in turn. Individuals do not need to be united by the mechanical interdependence of their working roles: they may be united by the culture of a particular profession or by more nebulous commitments such as the ‘public service’ ethos. The purpose which unites may even be supplied by statutory obligations (such as those imposed by the Crime and Disorder Act 1998 or the Race Relations Amendment Act 2000), at least once these have had time to become acculturated. All that is needed is a sense of what makes up the virtuous professional self: the list of things that people like us do and don’t do.
I seem to have proved that just and effective professional regulation is at least theoretically possible. Have I also rescued behavioural regulation? Not entirely. If a regulatory approach is genuine, I would argue – if it is more than an alternative label for administrative control – it must be founded on common interest; this in turn will mean that the ground level of Braithwaite’s pyramid is present. If the interest motivating compliance is truly shared, in other words, this can be demonstrated through the use of persuasion rather than deterrence – which will also be the most economical route to compliance. If the regulatory approach begins with deterrence and escalates from there, the suspicion must be that the interests of the subjects of regulation are simply being overridden: in other words, that regulation has illegitimately substituted for the legal processes which should adjudicate the conflict of interests – even between the state’s interests and those of an individual citizen. In the case of ASB legislation, there is some evidence of genuine attempts to appeal to ‘virtuous selves’, notably through the use of acceptable behaviour contracts (ABCs) as a precursor and alternative to ASBOs. However, there is plentiful evidence of a very different approach, deriving from the overtly divisive and exclusive ‘broken windows’ agenda. This approach tends to replace agreement between professionals and young people with agreement among professionals on how to deal with young people, who are seen as a problem rather than as individuals with interests of their own.
In the case of control orders, the situation is even worse. We are dealing here, after all, with people suspected of political offences – offences against the state. In the case of non-political offences, a habitual offender may have a socially responsible ‘best self’ to put forward, and may be motivated by gaining official recognition for this self-image: the literature on desistance tells us that this is a common profile among successful desisters in particular. By contrast, a suspected terrorist (assuming for the moment that he or she has been correctly identified) will be a committed opponent of the British state: someone who not only feels a deep-seated hostility to the state detaining him or her, but considers that hostility as virtuous rather than shameful. The possibility of mutual recognition between such a suspect and the authority regulating his or her behaviour is essentially non existent. This suggests that the regulatory approach in this case is illegitimate – or at least, that it is not regulation so much as the extra-legal use of state power.
In short, I follow Pashukanis in arguing that regulation tends to remove the matters regulated from the sphere of litigation and resolve them through administrative means. For this reason, regulation must be based on the recognition of a common interest, shared between the regulator and those regulated; this recognition can best be asserted and negotiated at the level of persuasive interaction, which is also the least costly and least coercive form of regulatory intervention. In the absence of such a common interest, regulation will be either ineffectual in its persuasion or unjust in its coercion. While these considerations apply to professional regulation, they apply with particular force to behavioural regulation. Although just and effective behavioural regulation is not impossible, the two most prominent current examples – the ASBO and the control order – are badly flawed, the control order in particular.
Braithwaite, J. (2002), “Rewards and regulation”, Journal of Law and Society 29: 1
Macdonald, S. (2007), “ASBOs and Control Orders: Two Recurring Themes, Two Apparent Contradictions”, Parliamentary Affairs Advance Access, published July 27
Pashukanis, E. (2001; originally published 1924), The general theory of law and Marxism, New Brunswick: Transaction