Constitutionalism & the Time of the Political

(This post originally appeared on Critical Legal Thinking on 19 September. It is an abridged version of a paper given at the 2011 Critical Legal Conference in Aberyswyth, Wales).

by: Stacy Douglas

In his book The Idea of Public Law Martin Loughlin outlines three ‘orders of the political’ that underpin and orient public law. The first order begins with Carl Schmitt’s famous formulation of the distinction between friend and enemy. Loughlin contends that it is this decision or ‘deed’ that forms the foundations of the political, upon which the second and third orders rest. As such, this distinction comes before the creation of the state and before the creation of law. The second order goes beyond this stage to include a state-based program of governance. Here politics takes its place as the system that operates between the governors and the governed in order to achieve a common goal of security and stability. The third order of politics comes in the form of constitutional law. Loughlin claims that this third register functions to smooth out and balance the systems of state-government via a fair, non-partisan framework. For Loughlin, constitutional law is the result of a collective political bargain. It establishes the ‘rules’ that the people have agreed will guide and orient the relationship between government and governed. It is these three orders of the political, and their attendant relationship that, according to Loughlin, help us to understand how public law ‘works’.

My response here is a very brief foray into the temporality that undergirds Loughlin’s conception of how public law ‘works’. I will pose a few preliminary questions about the use of time in Loughlin’s theory. Namely, I want to point to the problems and pitfalls of i) positing an ‘origin’ or concrete foundation of law, ii) consigning the time of ‘the political’ to a past (the original ‘decision’) upon which governmental institutions are built upon, and iii) using the discourse of empirical history to draw out a boundary of a ‘true’ or ‘actually existing’ community of willing subjects that can perform this original deed. In addition, I want to ask how this narrative of temporality allows us to understand law as something that ‘works’ in the first place.

The Time of Law or How Law ‘Works’

Firstly, Loughlin’s description of public law perpetuates a conception of law as a transcendent force, ‘outside’ and autonomous from a subsequently insinuated ‘inside’. Peter Fitzpatrick has long since demonstrated how this trope fits into a deeply entrenched pattern of origin stories that posit a mythical time of pure beginnings. He argues that law is commonly described in these terms, thereby rendering a projection of it as a coherent and singular entity. He claims that such descriptions “elevate a particular and official interpretation of law and invest this law with abilities and values which render it transcendent and constant” (Fitzpatrick 1992: 5). The assertion of an origin deploys an authorizing temporality of law and its presence – one that scuttles the murky questions about the paradox of this inaugural moment and, indeed, its very impossibility.

Secondly, in Loughlin’s theory set out above, the time of the political has already taken place. If the first order of the political undergirds the second and third then Loughlin has invoked a particular form of temporality into his so-called ‘objective’ description. This temporality relegates the political to a prior time and place upon which governing institutions and constitutional law can be built. Certainly, the emphasis on the foundational ‘decision’ invites a reading of the double meaning of ‘deed’ here. Loughlin clearly is referring to the political decision/action as deed. But ‘deed’ might also be thought of as a type of ‘license’ or legal agreement and it certainly does function this way in Loughlin’s work. With striking similarity to the form of a contract, Loughlin’s ‘deed’ legitimates the institutional politics that are erected on top of it.

Thirdly, in the introduction to the book The Paradox of Constitutionalism: Constituent Power and Constitutional Form (2007), Loughlin stresses the importance of ‘real life’ examples in thinking through theory. As further evidenced in his solo contribution in the same book, as well as in his latest book The Foundations of Public Law (2010), Loughlin’s proclivities for empiricism run deep. In both pieces, Loughlin’s argument relies heavily on the historical contexts that underpin and give rise to contemporary constitutional problems. By delving deeply into these historical contexts Loughlin believes that history can act as a tool for making sense of what is otherwise overly abstract.

Loughlin’s historicist empiricism represents a pinnacle example of what philosopher Jean-Luc Nancy writes against. Where Loughlin uses historicism to create and legitimise a knowable and containable community at the centre of constitutional theory, Nancy would draw attention to Loughlin’s use of history as myth. Where Loughlin posits an ‘actually-existing’ constitutional community, Nancy draws attention to the dangerous culmination of this mode of thinking. Instead of closing down imagined conceptions of community, Nancy argues that we must imagine the ways in which community is always already open, between, and shared. Moreover, beyond Loughlin’s predilection for founding ‘the political’ on an original ‘deed’, Nancy advocates for thinking community outside of contractual obligations in ways that illuminate the truth of being-in-common.  

The Mythical Time of Law

So what is the consequence of invoking this particular temporality to tell a story about law, constitutionalism, and political community? I claim there are at least two outcomes that critical readers of Loughlin (and other social contract theorists) should take note of.

Firstly, the story of law’s origins in a social contract – or to use Loughlin’s language, a ‘deed’ – tells us that there is an authorizing moment and, indeed, an authorizer to political community. If we consider the possibility that such foundations are false – the possibility that there is no origin story – then the authorizing force that inaugurates and maintains political community is called into question. Loughlin’s imagined ‘deed’ is a story that does not function neutrally as an objective account of ‘what actually is’ but actively creates an imagination of law’s (central) place in the creation of political community.

The second part of Loughlin’s mythological narrative is his account of the place of the political - ‘the political’ is consigned to the time of the founding ‘deed’. Although Loughlin argues that the ‘deed’ has continued presence and potential after the fact (i.e., it legitimizes the political community’s measures to break with or challenge existing institutional juridical forms), it remains that the political is tied to this contractual moment. In his account, the ‘deed’ legitimizes and authorizes the actions of the political community. This is where and when the political took place and from which it continues to wield its power. As Emilios Christodoulidis remarks in Public Law and Politics: The Scope and Limits of Constitutionalism (2008), this conception of the political runs counter to Schmitt’s decisionism by dropping the crucial element of reflexivity – that is, the ongoing process of deciding the political – and instead relegates it to one moment.

In sum, as Loughlin ‘objectively recounts’ the foundations of public law, he recasts it as inherently tied to this narrative of the political. As he paints this picture, his narrative silently elides the ever-present potential of the political to be in any place and at any time. Instead, this social contractualism confines the political to a ‘proper’ place. As I have argued elsewhere, this demand for ‘proper’ political expression is intimately tied to the discourse of civility. This is most markedly obvious in its constant characterization as the opposite of savagery. As I state in my recent article on the London Riots,

These stories, proffered by the likes of Rousseau, Hobbes, and Locke, assert the necessity of a social contract to establish authorized governmental relations that can then approve or condemn particular political action(s)...According to these liberal narratives, law is what civilizes the state of nature, it is what safeguards the people, it is what assuages the problems of living in anarchy. What these narratives actively remove from the story, of course, is the way that law does not protect but in fact is an active perpetrator of violence. ('Race, Civility, and a Good Cup of Tea: Considering the "Political" in the London Riots', Canadian Dimension, 25 October 2011; also below)

Dwelling on the civilizational undergirding of social contract theory can assist in thinking through the ways in which, for example, the London Riots were deemed ‘not political’. Given the heavy hegemony of the liberal legal schema it is indeed easy to see how actions taken outside of this framework cannot be read as ‘political’. This illegibility, I contend, is linked directly with the temporal undergirding of the social contract theory like that found in Loughlin. As such, analysing the time of this narrative means re-asking questions about the time of ‘the political’, the time of ‘community’, and perhaps most importantly, the time of political community. More pointedly, if we consider that the temporality mythically consigns the political to an imagined past, we might then ask: ‘what are we waiting for?’.

Race, Civility, and a Good Cup of Tea: Considering the ‘Political’ in the London Riots

(Although written in August 2011, this post was first published with Canadian Dimension on 25 October 2011).

by: Stacy Douglas

Rioting began in London, UK on Saturday 6 August after a march on the Tottenham Police Station in north London surged into a violent conflict between demonstrators and police. The protestors were marching for answers about the death of Marc Duggan, a local young black man who had been shot and killed by police in a pre-organized stop and search of a minicab on Thursday 4 August. Following a poorly handled communication (or lack thereof) with Duggan’s family and girlfriend over the next two days and an increasing number of suspicious rumours, angry locals marched to the police station to ask questions on Saturday afternoon. Amidst the rising tension on the Tottenham High Street that day, a young teenage girl was surrounded and assaulted by numerous police brandishing riot shields and batons. This was the act that set the already angry crowds off. That night Tottenham High Street smashed and burned at the hands of a raging community.

After that Saturday, rioting spread throughout various London boroughs. National and international media announced that London was under ‘mob rule’ while showing images of people they deemed ‘criminals’ smashing and looting high street stores. In response, many observers tried to comment on the situation, drawing out grand theories of the political, social, and economic context behind the events. Some blamed social spending cuts brought on by the new Tory budget. Others drew attention to the centrality of consumerism in peoples' lives. Still others decided to call the rioting pure and simple hooliganism, denouncing those involved as criminal thugs. It is to the third set of observers, those who describe the events as the result of a rampaging bunch of heathens, that I focus my attention on here. However, instead of attempting to forward another grand theory of the riots and rioters, this analysis will turn attention to the observers of said riots, or rather, the notion of the ‘political’ in these responses.

LOCATING THE POLITICAL

The failure to see the riots as political comes as a result of a normalized conception of the political that assumes it is synonymous with liberal parliamentary democracy. As one Canadian journalist asserted to me in a recent radio interview – ‘these rioters weren’t targeting government buildings’. For this journalist, the images of the events in circulation did not correspond to what she imagined to be a ‘political’ demonstration; they did not correspond to a framework of liberal democracy that sought government as its aim, nor that had a political program, manifesto, or legible purpose as its mobilizing force.

Moreover, this assumption is racially coded as the discourse of law and ‘proper’ political action are deeply enmeshed in conceptions of civility that undergird the very notion of the social contract and it’s upholding. As such, I argue against those who claim that ‘race’ and ‘racism’ have faded away from this story. Amidst David Cameron’s threats to call in the army, Boris Johnson’s decries of the violence as ‘mindless vigilantism’, and self-aggrandizing volunteer clean-up squads, this story has important things to tell us about race, civility, and the idea of the ‘political’ in western liberal democracy.

THE PERSISTENCE OF RACE

The first way in which race persists in this story comes from my own observational experience of the riots. On the day following the first eruption in Tottenham, the neighborhood was strewn with anti-police graffiti. Spray-painted signs on the road, walls, street signs, bus shelters, and store-fronts forcefully conveyed to any onlooker what the take home message of the violence was – ‘fuck the police’. These messages were ignored by mainstream media outlets. After five days of following the rioting on all social networking and mainstream media websites, I have yet to see a single photo of this graffiti.

Nor was this merely a visual message - shouts of ‘fuck the police’ and ‘you know you’re racist’ resounded in confrontations on Mare Street and Clarence Road in Hackney. On Monday 8 August, one of the largest street confrontations between rioters and police happened just north of Pembury Estate, an event now dubbed ‘The Battle for Pembury’. At approximately 8:30pm, a mass of 300 largely black youth fought the police with vicious intensity, splitting the police lines and rendering the riot suited defense force impotent. No shops were looted, no innocent bystanders attacked – this was a well-mounted and virulent attack on the police. Outside of London the following night, a police station was fire bombed by rioters in Nottingham, petrol-bombs were hurled at police in Coventry, and police were attacked on the streets in Gloucester and Liverpool.

While opportunistic looting also took place in and around these events, the portrayal of rioters as mindless and without cause actively ignores the persistent anti-police sentiment that undergirded many of the events, especially in north London. This attitude stems from a long history of racialised communities fighting systemic racism in the London Metropolitan Police Service and cannot be disassociated from legacies of police violence that were also the subject of riots in Brixton in 1981 and Broadwater Farm in 1985. People who try to play down these realities fail to see the ongoing police violence and state-endorsed criminalization of racialised communities that groups such as the Newham Monitoring Project, Cageprisoners, the English Collective of Prostitutes, and Medical Justice continue to fight against.

The second way in which this story continues to be about race can be witnessed in many of the mainstream responses to the riots that appeal to ‘civility’. This response comes from both expected and unexpected places – from the mouth of the Conservative Prime Minister to those involved with the self-appointed ‘London Cleanup’ entourage. The latter, a combination of voluntarist hipsters and do-gooding citizens with a few hours to spare in the middle of the day, took to the streets with brooms and garbage bags to both physically and symbolically ‘clean’ up the streets. This makeshift group of citizens, exalted by widely circulating photographs showcasing their arsenal of sterilizing weaponry, epitomize the civilizational discourse that is at play in the varied conversations about the riots. These citizens are cleaning up the ‘mess’ that looters left behind. However, this ‘mess’ is not merely a physical one consisting of broken glass and garbage, but it is also a ‘mess’ that rioters have made of the supposed social fabric of British society. In this light, the riots are portrayed as mindless and without intention, while the law – the social contract that legitimizes institutionalized politics confined to parliamentary democracy – is the bastion of reason and civilization. These voluntarist street cleaners affirm that the law that they uphold with the force of their brooms is not only the singularly legitimate route to vocalize dissent, but is proper and good. In another example, a Facebook page called ‘Operation Cup of Tea’, that invited Brits to show their disdain by staying at home and ‘having a cup of tea’, was a top Twitter trend and had over 330,000 members by day four of the riots.

This demand for ‘proper’ political expression is intimately tied to the discourse of civility. Indeed, law is a civilizing force. This is most markedly obvious in its constant characterization as the opposite of savagery – a narrative well known by indigenous populations the world over who experienced the force of legally-sanctioned colonialism by the world’s various empires. These communities and its encroaching settler populations were and continue to be told that the legal violence – often termed ‘negotiations’ or ‘settlements’ by the occupiers – were a necessary element of creating order and founding a legitimate nation. Of course, these narratives have a deep resonance with the contemporary constitutional and political theory that undergirds the political imaginations of most of the globalized world today. These origin stories, proffered by the likes of Rousseau, Hobbes, and Locke, continue to assert the necessity of a social contract to establish authorized governmental relations that can then approve or condemn particular political action(s). This contractual relation and its ensuing establishment has been widely normalized as the pinnacle form of political association. According to these liberal narratives, law is what civilizes the state of nature, it is what safeguards the people, it is what assuages the problems of living in anarchy. What these narratives actively remove from the story, of course, is the way that law does not protect but in fact is an active perpetrator of violence.

While I do not have the space or local knowledge to list a great number of examples of the way in which the law perpetrates violence in Tottenham, the existence of popularly documented institutionalised racism in the London Metropolitan Police, not to mention the devastating conjunction between racialised neighborhoods and poverty, unemployment, and poor public services, works to further state-violence in these communities. Here the myth of law as a saving force is well known. In Tottenham, Clapton, and Hackney, the bourgeois liberal trust of the state – and especially the police – is revealed for the ideology that it is.

Significantly, the erasure of this narrative of race and civility leads us to difficulty in explaining the connection between the riots and the response by the English Defense League and other racist ideologues who are using the events as a vehicle to promote civilizational narratives about the encroaching threat of so-called immigrants and the need to return to an imagined vision of an original ‘great’ Britain. Of course, the riots were not entirely about race either. As excellent reports from The Guardian’s Paul Lewis, among others, clearly demonstrate, rioters were people of many different colours, ages, and motivations. However, when legacies of racism are actively removed from both the events as they unfolded as well as the subsequent analysis, we miss the chance to not only understand how the riots were racialised but, how western liberal democracy is too.