The Real World of the Rule of Law: Courts as Oppressive Organizations, Part Four: To Resist or Not to Resist the Police

Are You Arrested? The Ambiguity of Being Detained by the Police

When a police officer stops a citizen, an immigrant or a migrant worker, it may be understandably unclear whether s/he is arrested or not and what s/he can do or not do if stopped by the police. From McBarnet, page 36:

Arrest-that is, the detention of a person against his will-may be legally carried out only in relation to a specified offence. Otherwise attendance at the police station is purely voluntary. This is the spirit of the Judges’ Rules. Barry Cox ( I975) points out succinctly the gap between this ideology and practice:

Detention for questioning is therefore in theory impossible; in practice ‘helping the police with their inquiries’ is a daily event. (p. I72)

How is this possible? Partly because of the simple fact that if such arrest is impossible in theory it is nonetheless perfectly possible in law. Although they are much referred to as a symbol of legality, the Judges’ Rules are not law, only principles for administrative guidance. Authoritative law on arrest is rather different.

If a person is not arrested when stopped by the police, what can the person do? Can s/he just leave (apart from some exceptions–as when the police require a person to take a breathalyzer test)? Not really. They, of course, can try to leave, but the legal interpretation of such an act is rather tricky. From McBarnet, page 36:

For example, the voluntary nature of helping the police with their inquiries has been interpreted in law, to say the least, very widely. Consider the Scottish case of Swankie v. Milne in I973 which defines the current situation. This was deemed not only not to be an illegal arrest but not to be an arrest at all. The judges accepted that the police had stopped the accused in his car, taken his keys away, waited with him and would have prevented him from leaving if he had tried to. However, they concluded that the accused had remained voluntarily and had not therefore been arrested.

Furthermore, what if the police try to stop the person? What right does the person have in this case? Referring to the above case, From McBarnet comments, pages 36-37:

What their judgement would have been if he had tried to leave is unclear. But it is also an arrestable offence according to the 1964 Police Act to obstruct the police in the execution of their duty, and this has been interpreted as ‘the doing of any act which makes it more
difficult for the police to carry out their duty’ (Rice v. Connolly, I 966). What precisely that means remains an open question. Although Lord Justice Parker in the same case refuted the idea that refusing to answer questions, even allied with a generally obstructive and
sarcastic attitude, was not obstructing a policeman in his duty. Justice James made a point of noting that:

I would not go so far as to say there may not be circumstances in which the manner of a person together with his silence could amount to an obstruction within the section; whether it does remains to be decided in any case that happens hereafter, not in
this case, in which it has not been argued. (Rice v. Connolly, Ig66)

It becomes rather difficult to see how someone can avoid being arrested if the police have a mind to arrest him.

Doing anything that indicates resistance to the police can easily be interpreted as resistance of arrest–and guilt. From McBarnet, page 37:

Furthermore, refusing to co-operate is not a far cry from resistance, which is, of
course, an arrestable offence; nor is resistance far from another offence, assault.

Indeed, in court, resisting arrest tends to be presented by prosecutors as indicative of guilt and therefore a justification of the arrest on the first charge anyway. ‘Only the guilty take advantage of civil rights’ is the line taken.

A person stopped by the police, on the other hand, who does not resist arrest may be accused of being guilty for that very reason. From McBarnet, pages 37-38:

On the other hand, with the nice skill lawyers have of always holding the winning trick, failing to resist is also suspicious. Witness Case 8.

The prosecutor was suggesting that the accused must have been guilty or he would not have allowed himself to have been seized (uncharged) by two men (the police were in plain clothes) without resisting:

Prosecutor: You didn’t do anything?
Accused: I couldn’t.
Prosecutor: You didn’t say ‘What are you doing?’
Accused: No, it was all too quick.
Prosecutor: And no explanation was given at all?
Accused: No
Prosecutor: When did you gather they were policemen?
Accused: I asked them-they said they were taking me to the station.
Prosecutor: But why assume they were policemen? There are railway stations.

The same applies to friends who do not assist the accused. From McBarnet, page 37:

In his summing up the prosecutor considered it doubly suspicious that the accused’s companion had not fought off the two policemen if his friend was being innocently seized:

Prosecutor: According to his story, his companion made no protest while the accused was dragged out by two unknown men. This is quite incredible. He is clearly guilty of this charge.

The flip side of this catch-22 situation–damned if you do and damned if you don’t–is you may be accused of resisting arrest if you do aid someone detained by the police. From McBarnet, page 38:

The companion in question might, however, have been relieved that he had not intervened if he had heard the accused’s mother’s account of her night in jail charged with breach of the peace when she went to protest, or if he had witnessed Case 13:

Policeman: One youth ran towards us saying ‘What are you taking him in for? It’s a fucking liberty. He’s done fuck all!’ He was cautioned and charged with breach of the peace.

What if there is no ground for arrest, the police arrest the person and the person resists? The person can be charged and convicted of assault. From McBarnet, page 38:

In any case, the prosecutor’s argument was only about the credibility of the accused not the legality of the arrest. Indeed, in cases of resistance or assault, even if the arrest was unfounded and illegal it is still, in English law, ‘open to the jury to convict of common assault’ (Halsbury, 1g6g, vol. 25, p. 364) and the charge sticks even if the resister did not know the person seizing him was a policeman. In short, the law itself does not encourage standing on one’s right to freedom from arbitrary arrest.

The Social-Democratic Left and Criminal Law

What would the social-democratic or reformist-left say about this? They would likely repeat what the social democrat Herman Rosenfeld stated:

Shouldn’t that institution [the police] be thoroughly transformed, by political struggle, into a more humane, limited and less autonomous one?

Okay. How does Mr. Rosenfeld or other social democrats propose to do that? Frankly, I think that you should not hold your breath while waiting for a response. The article written by Mr. Rosenfeld from which this quote is drawn is dated May 4, 2020. I have searched on the Net to see if Mr. Rosenfeld has elaborated on this assertion since then; I have not been able to find anything at all written by him on the topic since his May 4 article.

This is just social-democratic rhetoric passing it off for something real; it is pretending to be something that it is not. It is fake social reform. Workers, citizen, immigrants and migrant workers hardly need such pretentious rhetoric. Mr. Rosenfeld has no real intention to lift a finger to formulate let alone implement a policy for police “reform.” I suspect that this applies to many other social-democratic or reformist arguments.

Indeed, when Mr. Rosenfeld, Jordan House and I were giving a course on union organizing and socialism for airport workers at Toronto Pearson airport, I mentioned that we workers at a brewery in Calgary had engaged in sabotage of the machines in order to have one foremen fired (he was pressing us constantly to produce more), I had the impression that Mr. Rosenfeld was uncomfortable in my stating this fact; he was probably afraid of challenging the beliefs of the workers. I could of course be wrong, but Mr. Rosenfeld’s lack of elaboration of how the police are to be transformed and reformed provides further evidence of my suspicion that he actually holds social-reformist views and that his socialist views take second place; this conclusion probably applies to many so-called socialists.

Furthermore, the title of his article from which the above quote is drawn expresses a hostility to the view that what is needed is the abolition of the police and not its reform:

Reform and transform: Police abolitionism and sloppy thinking

Such hostility to a politics of abolition by calling it “sloppy thinking” without engaging in any further inquiry also points to a social-reformist or social-democratic point of view.

Perhaps social democrats or social reformers can provide counterarguments to the above. I welcome such counterarguments–but I suspect that they will not provide any counterarguments.

If there are no counterarguments by the social-democratic or social-reformist left, does that not point to the need to abolish the police and the associated court system that is linked to it? Would not a people’s court and armed citizens be much more in the interests of workers than a separate police force and courts that engage, systematically, in oppressive measures against those who challenge social order? After all, as Mark Neocleous argues, the essential function of the police (and the courts by implication)–is to maintain social order of a society dominated by a class of employers–and not to administer social justice (see Reform Versus Abolition of the Police, Part 8: The Police and the Political Economy of Capitalism).

Conclusion

Workers, citizens, immigrants and migrant workers who are stopped by the police, even if they have not broken the law, could easily be arrested for refusing to comply with police officers’ instructions. On the other hand, complying with police officers’ instruction could also be used in a court of law against them. Such is the illogic of a system of justice within a society dominated by a class of employers.

You would not know it from the rhetoric of the social-democratic or social-reformist left, though. They provide little or no research to educate workers, citizens, immigrants and migrant workers on the real nature of the work of police officer and the real law as expressed in courts of law. Rather, they paper over the real nature of such social institutions with their empty phrases of transforming such institutions “into a more humane, limited and less autonomous” form.

The Real World of the Rule of Law: Courts as Oppressive Organizations, Part Three: Arbitrary Arrest and Police as Privileged Citizens

Introduction

This is a continuation of a series that exposes the reality of courts as part of the exposure of the reality of the rule of law.

The series involves quotes from the book by Doreen McBarnet (1983) Conviction: Law, the State and the Construction of Justice as well as short commentaries related to the quotes. I use her book as a way of exposing the real nature of the rule of law and the role of courts in both hiding the real nature and enforcing the real nature of the rule of law.

The courts and the police are interrelated, and as a consequence what the police do and the nature of the police have an essential bearing on what courts do and on the nature of courts–as courts have an essential bearing on what police do and the nature of the police.

Does the law protect workers, citizens, immigrants and migrant workers from arbitrary arrest, and does it treat the police on the same level as workers, citizens, immigrants and migrant workers?

The Ideology of Evidence for Arrest Versus the Reality of Arrest to Find Evidence (Arbitrary Arrest)

Theoretically, or ideologically, the police are supposed to have some basis for arresting citizens rather than arresting them and then finding evidence. From page 27:

In principle then the police must have evidence against someone before detaining him, not detain him in order to obtain evidence against him-exactly the principle one might expect to be enunciated in an ideology of legality which seeks to safeguard the citizen from the state by prohibiting arbitrary arrest. At the level of abstract principle, due process and crime control seem well and truly at odds. And the question facing us is how do the police, in the face of legal definitions of due process, acquire the requisite information for incriminating suspects and setting the whole process in motion?

Police work is typically presented in relation to the right of a citizen not to incriminate oneself (as typically presented in police shows (such as those on Netflix and Amazon Prime), with the police then engaged in a process of investigation to establish evidence that substantiates criminal charges. This situation, however, is the exception of criminal charges rather than the rule. Page 27:

…how difficult the incrimination process is depends on the kind of offence involved. In what the police see as ‘real police work’ (Cain, 1971, p. 88) incrimination may well be problematic. For this is the stuff detective fiction is made of, where only the offence comes to light and both offender and evidence for incrimination have to be established by investigation. But this is not the kind of offence that dominates the work of either the police or the courts. Petty offences, particularly offences against public order, are much more typical and these are of quite a different nature. They are largely a matter of police-citizen encounter with the police defining marginal behaviour as subject to arrest or not, with the
policeman and the culprit on the spot, with no investigation involved, and the process of incrimination simply begun and ended with the charge. In short for the vast majority of cases that are processed by the police and the courts, incrimination, and the constraints of law on incrimination, are simply not a problem.

This does not mean that the police are satisfied with such a situation. They do indeed seek to obtain enhanced powers that would allegedly permit them to widen their field of arrests to include more professional criminals. The problem is that such professional criminals, as professional, often will adapt their procedures to take into account the changed procedures of the police, thereby once again eluding the police. The probable result is that either it will be more likely that the same petty offenders will be arrested, or more petty offenders will be arrested. Page 27:

Of course the police demand for more powers is less concerned with such petty offenders than with the ‘hardened criminals’ who escape conviction by slipping through the net of procedures that are ‘excessively solicitous towards accused persons’. The irony is that
the people most likely to be caught by wider police powers are the petty offenders who, as it were, know not what they do. Successful professional criminals are, as Mack ( 1976) notes and Mcintosh ( 197 1) demonstrates historically, successful professional criminals
exactly because they can find their way round and adapt their methods to new procedure.

As an aside, but related to this, Herman Rosenfeld, a supposed Marxist radical here in Toronto, Ontario, Canada, claimed the following:

Shouldn’t that institution [the police] be thoroughly transformed, by political struggle, into a more humane, limited and less autonomous one?

Since the police, when they make an arrest, do so in the majority of cases because of petty crimes, where the person is allegedly “caught in the act,” how does Mr. Rosenfeld propose to “transform the police as an institution into a more humane, limited and less autonomous one” under these circumstances? I am still waiting for Mr. Rosenfeld’s elaboration of such a proposal. I predict that he will never elaborate on such a proposal because his statement is pure rhetoric–typical of many social reformists or social democrats.

Returning to the issue of the so-called right not to be arrested arbitrarily, not only are the vast majority of arrests for petty or minor offences but they are “easy” in that they do not involve substantial investigation or inquiry. Page 28:

there are so many marginal arrests [because] they are easy.

Arrests without warrants rarely go challenged. Pages 28-29:

… as Renton and Brown (I972) point out in discussing arrest without warrant, ‘it is not often challenged’ (p. 28). Given the methods available for challenging an arrest, this is
hardly surprising. The opportunities are limited: one may challenge the arrest in the course of a trial, one may take out a civil action or one may lodge a complaint against the police under the 1964 Police Act.

Furthermore, most such offences do not even go to trial since most of those charged plead guilty. Page 29:

But most cases do not come to trial since most defendants plead guilty (whether they believe themselves guilty or not) 4 and the legitimacy or otherwise of the arrest is therefore never challenged.

Even the presence of a lawyer hardly guarantees that police conduct will be challenged. Page 29:

… even defendants who are represented may find their lawyer advising against questioning police conduct since it might turn the judge against him (Baldwin and McConville, 1977)

If the accused does challenge the arrest, the probability of winning is less than 20 percent: Page 29:

Box and Russell (1975) show that only 18 per cent were found-by the police-to be substantiated. The improbability of successfully challenging an arrest, particularly for a trivial offence, provides one immediate reason for the ease of marginal arrests.

This lack of probability of successfully challenging the legitimacy of an arrest and being taken into custody is due: 1. in part to the vagueness in the law’s reference to the legitimacy of an arrest in the interests of justice; 2. in part to only the subjective requirement of the police’s belief that the arrest was justified and 3. in part in the history, character and living circumstances of the person taken into custody. Page 29:

The legality of custody is defined in terms of reasonableness or the interests of justice (Renton and Brown, 1972, p. 30), neither of which sets the parameters very clearly, allowing wide scope for subjective discretion. Indeed, the common law merely offers a post
hoc check on the ‘reasonableness’ of the policeman’s belief that arrest was justified. The law also accepts the belief that people ought to be taken into custody if they have a past record (Carlin v. Malloch, 1896) or are jobless or homeless. Lord Deas, in Peggie v. Clark ( 1868)
made it clear that the arrest of a member of ‘the criminal classes’ or of someone with no means of honest livelihood or fixed abode is easier to justify than that of someone who:
even although expressly charged with a crime by an aggrieved party, be a well-known householder-a person of respectability-what, in our judicial practice, we call a ‘lawabiding party’.

The homeless and jobless are automatically suspect as being of the “criminal” type; only those who work for an employer (and thus are oppressed and exploited) and, possibly, own some form of property (such as a house or condominium) as well as employers and professionals, should be free from arbitrary arrest since they form essential means or material for the continued existence of capitalist society.

As I have pointed out elsewhere (Reform Versus Abolition of the Police, Part 8: The Police and the Political Economy of Capitalism), the legal system is designed to ensure that workers remain workers for employers, and those who are on the fringes of the employer-employee relation are always suspect and easy prey for arbitrary arrests by police. This situation is not despite the law but because of the law. From pages 30-32:

Given the law’s attitude to the homeless and jobless we could not expect equality anyway. Pragmatics and rationalisations at the informal level-with the consequence, intended or otherwise, of class and racial bias-are also endorsed in formal law. As for having sufficient evidence on a specific offence, there is also plenty of scope for legally circumventing that principle. The specific offence may itself be rather unspecific: breach of the peace (whose
peace?), loitering with intent or being on premises for unlawful purposes (how does one determine purpose or intent?), possessing goods for which one cannot satisfactorily account (how many people carry receipts and what is satisfactory?), carrying implements
that could be used for housebreaking (where does one draw the line?), or as weapons. Even an empty milk bottle has been defined as a dangerous weapon (Armstrong and Wilson, I973). If the police operate at this level with wide discretion (Bottomley, 1973) it is not just because they surreptitiously take it into their own hands but because they are formally allocated discretion on what constitutes an offence via vague substantive laws and wide procedural powers.

So, in vague cases like breach of the peace, the offence exists because the police say they observed someone loitering, drunk, ‘bawling, shouting, cursing and swearing’, to quote the daily menu for the district courts, or more unusually but nonetheless an observed case, ‘jumping on and off the pavement in a disorderly fashion’ (Case 30). These offences may be, in Maureen Cain’s term, marginal. They are, as described, amazingly trivial. But they are also numerically significant ( 76 per cent of the arrests Cain (1971) observed), hence her interest in probing the non-legal reasons for police making such arrests (p. 74). But what is also important is the formal structure which makes such arrests, whatever their
motivation, legal.

Likewise, one must refer to more than informal stereotyping to explain the arrest of two young boys (Case g), a ‘known thief’ and his companion, who, according to the police evidence, were ‘touching car handles’. Whatever the motivation of the police, the legality of their action is indisputable and the stereotyping more than informal. The General Powers Act 196o lays down the law that known or reputed thieves in suspicious circumstances are subject to arrest. A known thief is someone with a previous conviction for dishonesty: previous convictions become therefore not just informal leads for narrowing-down suspects on committed crimes but legal grounds for arresting them. A reputed thief is someone who keeps bad company and has no known means of honest livelihood: stereotyping and assuming the worst are thus written into the law. Suspicious circumstances are left to the police to define. Thus police evidence in this case is expressed purely as subjective interpretation:

‘they were touching them as though to open them .. .’,
‘he seemed to say to Craig to stand back .. .’,
‘they appeared to be watching and waiting .. .’ (McBarnet’s emphasis).

Note that it is not just police practice but the formal law here which deviates from the ideals of legality, replacing arrest for a specified offence with arrest on suspicion or for prevention; replacing established law with arbitrary definitions; replacing the doctrine of trying each case on its merits with the relevance of previous convictions. Personal and bureaucratic motivations can explain why the police want to make arrests; the law itself explains why they may.

The Real Rule of Law Privileges the Police Over Citizens

The real rule of law privileges police over citizens. An arrest by the police makes the probability of a finding of a guilty verdict quite high. The police in the courts, in effect, are treated as privileged citizens who have a higher regard for the truth. From page 32:

What is more, judicial sanctions on police arrests at this level are meaningless. Vague laws and wide powers effectively sidestep standards of legality and proof by equating the subjective police decision with substantive law and requisite evidence. The police are given the statutory powers to define the limits of the behaviour that constitutes public order. It is not necessary to prove any ill effect, for example, in a breach of the peace, that anyone was offended or even affected: a breach has occurred:

where something is done in breach of public order or decorum
which might reasonably be expected to lead to the lieges being
alarmed or upset. … (Raffaeli v. Heatly, 1949; McBarnet’s emphasis)

So the refusal of members of the public to say they were offended in witnessing the incident, a point regularly made in police reports, is rendered irrelevant, as indeed judges point out to juries, reading out the legal definitions and emphasising: ‘Note that ‘might be’. There need not be evidence that anyone was actually upset’ (Case 93). Nor is there any need to prove intent in cases like these, by, for example, reference to:

any particular act or acts tending to show the purpose or intent;
he may be convicted if, from the circumstances of the case and
from his known character, the court is of the opinion that he was
intending to commit a felony. (Vagrancy Act 1824, s. 12)

No further evidence than the policeman’s general statement of his impression unsubstantiated even by details of how he formed it seems to be required. Hence Case 29 where the accused were convicted of attempted theft from cars:

Prosecutor: And was anything missing?
Policeman: No. They didn’t get in.
Prosecutor: But you are sure they were trying to get in?
Policeman: The behaviour of the boys left me in no doubt that they were trying to enter the van.

Let us now return again to Mr. Rosenfeld’s social reformist political rhetoric:

Shouldn’t that institution [the police] be thoroughly transformed, by political struggle, into a more humane, limited and less autonomous one?

Given the above situation, how does Mr. Rosenfeld propose to remedy the situation? Through phrases? He refers to “political struggle,” and yet I have yet to see Mr. Rosenfeld engage in political struggle in this area. How are arbitrary arrests to be prevented? How is the main focus of police on petty offences (if indeed they are offences at all) to be transformed into a more humane form? Political struggle for him must mean–engaging in political rhetoric (in order to hide no real political struggle through challenging the power of the police and courts either on the streets, by way of his writings or a combination of the two).

Furthermore, what does he mean by “more humane police institution?” Some police institutions are certainly better than other ones (where police are personally corrupt in various ways versus not being so, for example), but the police as an institution is in itself inhumane and an expression of inhumanity. Mr. Rosenfeld, through his rhetoric, really wants the police to continue to exist indefinitely; that is the practical meaning of his political rhetoric. His reference to “more humane police institution” is an “abstract slogan”–a slogan with little meaning in the real context in which workers, citizens, migrants and migrant workers live and experience this world.

Let us now return to McBarnet’s exposure of the reality of law as opposed to its rhetoric. Minor charges (which are the vast majority of criminal charges) require little proof for guilt to be found. Court bias–and hence the bias of the law–is to assume that the police are telling the truth and that the charged person is lying unless there is evidence to the contrary. Police who arrest on the basis of minor charges in effect are assumed to be disinterested or neutral in making the charge rather than individuals whose prime function is to maintain social order in a society dominated by a class of employers. From page 35:

For the minor offences which dominate the courts incrimination is not a problem either practically or legally. Indeed the three analytical stages of incrimination, assembling a case, and convincing the court collapse into one. The policeman’s observations constitute the grounds for arrest, the substance of the case, and the authoritative presentation to convince the magistrate. There is little at issue for the court to decide in its role of reaching a verdict-nor indeed for it to control in its role of watchdog on the police.

Conclusion

Arbitrary arrest, most arrests involving alleged minor offences, the unlikeness of challenging arbitrary arrest and the privileges status of police in relation to workers, citizens, immigrants and migrant workers: these are the characteristics of the real rule of law and not the rhetoric or abstract slogan of the rule of law.

The social-democratic left, however, cling to the their rhetoric or abstract slogan of “transforming the police [and courts]” into a more humane form–without ever specifying how the real world of the rule of law functions nor how they propose to transform this real world of the rule of law into such a more humane form. They cling to the rhetoric or abstract slogan of the rule of law–its public face and by that very fact hide the reality of the rule of law, with its oppressive social structures in the form of oppressive legal structures (courts and police).

Having myself been arrested and subject to police harassment (see A Worker’s Resistance to the Capitalist Government or State and Its Representatives, Part Eight), I find this rhetoric to be quite offensive. It fails to recognize the extent to which people are persistently oppressed in a society dominated by a class of employers and the associated oppressive and exploitative economic, political and social structures.

Perhaps the social-democratic or reformist left will specify how they propose to ‘transform the police and the law, by political struggle, into a more humane, limited and less autonomous one’? I doubt that they will–or can.

Workers, citizens, immigrants and migrant workers deserve much more–they deserve that their experiences of oppression and exploitation be recognized. They deserve that this recognition be the preparation for the abolition of such oppressive and exploitative conditions. They deserve to live a human life.

The Radical Left Needs to Call into Question Existing Social Institutions at Every Opportunity, Part Seven

In the last post in this series, I pointed out that before I obtained a so-called permanent teaching position , I worked for a number of years as a substitute teacher (with short periods of term teaching positions). I became an executive member of the Winnipeg Teachers’ Association (WTA) (in the province of Manitoba, Canada), representing substitute teachers.

The WTA had an education fund for the executive, where each member, if approved by the executive, could access up to $3,000 for educational purposes. A condition for obtaining such funds was a summary of the educational experience and its publication in the WTA newsletter.

I used this situation as an opportunity to criticize the limitations of the educational experience.

Below is a copy of the critical summary of my educational experience (written in 2008):

A Philosophical (Critical) Commentary on the Mel Myers Labour Conference, March 12-13, 2008

A third speaker, Professor Guard, provided a welcome contrast to the one-sided emphasis on legal relations. She outlined how the rights of workers and of others depended on the labour movement becoming involved in wider struggles for social justice. From such struggles, the right to universal medicare, unemployment insurance, pensions and various other basic rights (which have been attacked during the past three decades) emerged through struggle—both legal and illegal. Indeed, the modern collective bargaining regime emerged in part on the basis of illegal strikes, forcing employers to recognize the union of the employees’ choice.

As Professor Guard noted, the way in which workers will expand their rights is not mainly through legal provisions but through organizing themselves effectively and through struggle. Legal provisions are mainly a consequence of such struggles and not their presupposition; such provisions can reinforce organizational forms and struggles already taking place. They cannot replace them.

Although Professor Guard did not address the issue, all legislation implicitly presupposes the legal right of employers to control employees or to use human beings for the ends of the group called employers—contrary to the ethical categorical imperative of Immanuel Kant, a German philosopher, to treat all human beings as ends in themselves. Even human rights legislation presupposes the legitimacy of treating human beings as means to the ends of employers.

Given the limitations of legal relations, it is curious that a conference that was advertised as “management free” had as its keynote speaker at lunch on March 12 Gail Asper, who spoke on the importance of the Canadian Muesum for Human Rights, located in Winnipeg. According to the 2005 Annual Report of CanWest Global Communications Corp., of which Gail Asper is a director and corporate secretary, total assets of that employer exceeded 5 billion dollars. To what extent Ms. Asper could be considered sympathetic to the daily concerns and needs of employees, including those of teachers, should be queried. Furthermore, by profession, she is a lawyer. Given these two facts, it is unlikely that she would engage in critical thinking about the legal system or the economic structure of society, which is largely characterized by the economic dependence of most who work on employers.

Despite these major limitations of the Conference, it was useful to gain technical knowledge of problems associated with collective bargaining since they are indeed problems that employees, including teachers, face or will face.

I chose three sessions for March 12: Mistakes to Avoid, Pension Update and Trends in Retirement. The session on Mistakes to Avoid involved some tips on how labour representatives can avoid problems in grievance handling. For example, they should play the devil’s advocate and question thoroughly the potential griever or witness to ensure that all relevant facts are elicited before deciding whether to proceed to arbitration.

The bottom line of the Pension Update was that if benefits are to remain constant, then contributions will have to increase since the rate of interest has decreased substantially and the longevity has increased. Alternatively, benefits will have to decrease if contributions remain constant.

The Trends in Retirement session pointed out that income-tax law has recently changed to allow a person to work, draw a pension and still contribute to the pension.

The morning session for all participants on March 13 dealt with safety in the context of emergency situations, such as a gun-toting person at a university campus or at a high school. A model was presented, emphasizing the need for a comprehensive and active inclusion of all relevant persons involved in a possible crisis situation.

I chose two independent sessions for the day: selection grievances and duty of fair representation. In the first session, it was emphasized that selection of employees for specific positions is one of the most difficult areas for unions to win a grievance since arbitrators are loathe to interfere in managerial power to select.

In the second session, most unions have been found guilty of breaching the duty of fair representation of members when they have not properly investigated a grievance. As long as they do so, it is unlikely that the Labour Relations Board will find a union to have breached its duty—even when it is wrong.

The final session for all participants referred to the top ten cases of 2007. In one case, an employee with ten years seniority posted an award of $500 to pie the CEO. The employee persistently attempted to excuse the act through subterfuge. The employee did not apologize, and the arbitrator found the employee dishonest. The termination was upheld.

This case gives one pause to thought. The employee, it was implied, should have immediately apologized and admitted guilt since arbitrators recognize remorse as a mitigating factor in determining the level of discipline. However, there is a difference between suggesting that the employee, out of prudence, should have outwardly acted remorsefully and actually feeling remorse. There was no discussion of why an employee would want to pie the CEO or whether many other employees in many work places would want to—secretly—pie the CEO or at least some of the supervisors and managerial staff.
This case exemplifies the limitations of the Conference.

Fred Harris, executive member

Critical Education Articles Placed in the Staff Lounge While I Was a Teacher, Part Nine: A Feminist Logic?

This is a continuation of earlier posts.

When I was a French teacher at Ashern Central School, in Ashern, Manitoba, Canada, I started to place critiques, mainly (although not entirely) of the current school system. At first, I merely printed off the articles, but then I started to provide a summary of the article along with the article. I placed the summaries along with the articles in a binder (and, eventually, binders), and I placed the binder in the staff lounge.

As chair of the Equity and Justice Committee for Lakeshore Teachers’ Association of the Manitoba Teachers’ Society (MTS), I also sent the articles and summary to the Ning of the MTS (a ning is “an online platform for people and organizations to create custom social networks”).

As I pointed out in a previous post, it is necessary for the radical left to use every opportunity to question the legitimacy of existing institutions.

The following is what I wrote to either the Ning or to the executive of Lakeshore Teachers’ Association or both (I cannot remember now):

I could not send the attached article to the ESJ Ning because the file size is greater than 3 MB and the Ning allows a maximum of 3MB.

I still did send the following summary and commentary, though:

The author (Caroll Hart) of the following article, “Power in the Service of Love,” argues that Dewey’s work, Logic: The Theory of Inquiry, provides a basis for the development of a logic that addresses feminist concerns for a theory that incorporates contextual experiences into the fabric of logic (including the specific contextual experiences of women). Women’s experiences are not the same as those of men, but at the same time there are commonalities, she implies, so logic should be capable of developing a universal logic that incorporates difference within itself. Dewey’s logic attempts to do just that.

Traditional logic is primarily a male preserve that claims to be universally valid and that excludes a large part of experiences by women. Traditional logic excludes a large part of the chaotic and ambiguous nature of ordinary life and language. On the other hand, traditional logic does seem to have some validity—there is no rational ground for rejecting traditional logic in favour of no logic at all. The problem, then, is to develop a logic that incorporates some aspects of traditional logic but at the same time goes beyond such logic.

Carroll Hart argues that John Dewey’s theory of logic satisfies those conditions and that feminists would do well to incorporate Dewey’s theory into their own ways of thinking and practice.

Logic, for Dewey, is a means to an end and not an end in itself, when viewed from the point of view of ordinary experiences of human beings in their daily lives. Logic is a tool, serving human ends rather than some universal end to which human beings must submit necessarily. We use logic to improve our lives and performances in our lives, and it is our lives and our performance in our lives that logic must serve. Logic is an instrument or tool, and we are the master of that instrument or tool. Logic serves us; we do not serve logic. Logic is, as the title of the article suggests, in the service of love—for our own lives and for our environments.

A logic that serves us permits us to become more sensitive to the environment or context within which we act.

Logic in its traditional sense is ordering or organization in a systematic fashion; in a sense, it is the organization of organization, or systematic systematization. However, the nature of this systematization is in dispute. Is it a systematization of the actual order or structure of the natural world? Is it a systematization of our language?

In experimental science, logic serves a functional status as a means to economize on effort by applying logical rules to derive conclusions that can be experimentally more relevant. Logic in this context is a means for us to regulate or control our experience and not something separate from us or from a specific function. Typically, though, logic is separated from its function and becomes an entity unto itself, with the consequent degradation of human experience.

Logic and intellectualization are inherently about constant relations and connections, but the reduction of the world of human experience to pure, unchanging relations and connections ignores the nature of experience as variable and subject to change. The establishment of constant relations through logic and the intellect is a means of controlling the variable nature of experience and not of ignoring that variability.

Viewing the world in purely logical and intellectual terms (typical of schools) excludes a large part of human experience and denigrates that experience while elevating logical and intellectual experience to a superior realm above ordinary human experience. Logical and intellectual relations are important, but they are important as means for guiding and enriching ordinary human experience—not dominated and denigrating it.

Indeed, the need for logic and intellectualization emerges from the ecology of the body/mind, with a situation within that ecology leading to the need for inquiry and thus for logic and intellectualization. Logic and intellectualization also leads to that ecology by contributing to the resolution of the problem that gave rise to the need for logic and intellectualization in the first place. Learning (inquiry) exists, ultimately, for the sake of ordinary experience and not vice versa.

In a situation in ordinary experience in which a problem emerges, there are conflicting aims or ends that cannot be immediately realized. Common-sense inquiry typically emerges as a result in order to address the problematic situation. People make inferences of the consequences of acting in a certain way when certain conditions are present and judgement about the nature of the problematic situation and about what is to be done in face of such a situation.

Logical forms arise to ensure that inference and judgement are controlled rather than haphazard. Logic enables us to check our inferences and judgements against previous rules culled from past experience.

There are two general logical forms, one involving definitions (decomposable into “if-then” sentences), and the other involving actual conditions in the world. Logical forms that are definitions may be too abstract to assist in the process of inquiry, but they may be broken down into more specific and interrelated characters useful to guide inquiry. Logical definitions involve each character forming a necessary component of the total logical term. (A triangle, for example, as a logical term, must have three interior angles that add up to 180 degrees. If something is a triangle, then it must have three interior angles that add up to 180 degrees.)

The other logical form has to do with inference and the determination of the specific nature of kinds involved in a problematic situation. The determination of the various kinds involved in a situation and the kind of situation itself requires inquiry and is controlled by the logical form of definitions .

Definitions and kinds are not isolated but form part of a system of interrelated cultural meanings. Interrelated definitions permit extensive logical implication and refinement; interrelated kinds permit extensive logical inference.

Interrelated definitions and kinds, if not situated in their function as means of controlling our inquiries in the face of problematic situations as we live our lives, assume an independent form that seems to be valuable in themselves—independently of human beings. However, such autonomization of logical forms typical of the conventional view of logical and intellectual terms leads to meaningless terms since such forms have meaning only in relation to their function of aiding in guiding and controlling inquiry in the face of a problematic situation.

Logical and intellectual forms thus must be connected to the world of ordinary experience, which involves the body and not just “pure reason.” Logical forms must involve a unity of the existential and the ideal. Both, in turn, must involve the inquiry process in the context of a problematic situation arising from ordinary experience.

To reduce the world of ordinary experience to the world of logical forms is to strip our multifaceted experiences to a one-dimensional world characteristic of academics—who have mainly been male. Such a world undoubtedly has its elegance, but to take it as the whole of human experience is to confuse the part for the whole and to sacrifice the whole for the part. It is to strip the richness of human experience of its qualities and to sacrifice that richness for the sleek elegance of logical forms.

It has been male academics who have traditionally claimed such logical forms to be universally applicable regardless of differences in human experiences. Dewey, though male and an academic, recognized that such universality was a chimera. The logical forms are means for the end of enrichment of the human community and not some universal end to which we must all conform. We use logical forms when faced with a problematic situation, and those logical forms assume a universal form but always emerge from and return to differential situations with all their “chaos and messiness.”

The logical forms enable us to grasp commonalities among situations, but differences among situations lead to a refining of the logical forms as well as branches that constitute different commonalities over time.

One of the problems which the Hart does not face is whether differences may take precedence over commonalities. Although of us live on this Earth and therefore share a common situation to that extent, differences may indeed lead to irreconcilable conflicts.

The educational implications of this view of logic and intellect should be obvious. These educational implications are opposed to the modern school system, which makes intellect the end of everything. The experiences of students that do not have the intellect as their focus are considered irrelevant. Learning, and only learning, is important. Although Dewey’s logic appreciates the importance and role of learning, the intellect and logic in human life—indeed, Dewey wrote his book Logic: The Theory of Inquiry, in part, to emphasize the importance of inquiry and hence learning in the life process—it is still an end to other means for most people. To take the means (learning) for the end (improvement of human life), and to take the end as the means (human life is to be sacrificed for the sake of learning) is to pervert human nature and to assume an academic and elitist attitude towards human experience.

Schools need to treat the development of the intellect in functional terms, as means toward an end and not ends in themselves. The development of the intellect may indeed become a temporary end as students learn to appreciate the importance of intellectual development for the improvement of human life, but it should never be forgotten that the focus on the development of the intellect is a temporary perch before the child flies towards other goals that are most often more important than so-called learning goals for the students.

There is a limitation to Hart’s article. Hart recognizes that she is from the middle class, but her difference from the working class may blind her to their distinct differences. For example, the middle class often denies the importance of the power of employers in influencing workers’ behaviour. Often, they cannot even face the situation that workers (whether male or female) become employees who are converted into things to be used by employers. Their personhood is denied when they are working; it is only recognized in the sale. Loss of civil rights as an employee is rarely something that the middle class can face critically. They seek to avoid engaging in debate over the issue since such debate may oblige them to rethink their lives and change the direction of their lives, and they have little desire to change the direction of their lives.

Dewey’s logic has therefore much to recommend itself to feminists, but those feminists who are of the middle class, if they do indeed wish to recognize difference within commonality, must make a sustained effort to recognize the limitations of their own experiences. Working-class women are both women and members of the working class—subject to the power not only of males but of employers. Educators, too, must come to recognize the importance of that power and incorporate such recognition in their own practices—together, in solidarity with each other and with other employees subject to the power of employers.

A working-class feminist logic may indeed appreciate and incorporate Dewey’s theory of logic into its own theory, but it must be supplemented by a logic that incorporates differences that may indeed be irreconcilable—such as the differences between employers and employees.

Educators would well incorporate Dewey’s logic into their own work and supplement it with a logic that recognizes irreconcilable differences. Equity and social justice demands such recognition.

The Real World of the Rule of Law: Courts as Oppressive Organizations, Part Two: The Case, Not the Truth, is Relevant in Court Proceedings

Introduction

This is a continuation of a previous post (The Real World of the Rule of Law: Courts as Oppressive Organizations, Part One). I explored how judges influence what juries define as “reasonable doubt.” As I indicated in the previous post:

The following series of posts are meant to complement the series of posts on the issue of reforming versus abolishing the police (see for example Reform or Abolition of the Police, Part One or Reform Versus Abolition of the Police, Part 8: The Police and the Political Economy of Capitalism).

The following is mainly a series of quotes from the book by Doreen McBarnet (1983) Conviction: Law, the State and the Construction of Justice as well as short commentaries related to the quotes. I use her book as a way of exposing the real nature of the rule of law and the role of courts in both hiding the real nature and enforcing the real nature of the rule of law.

A note on the limitations of the following: Ms. McBarnet draws on English and Scottish law; the situation here in Canada may be somewhat different. If anyone knows of sources relevant for determining the real operationalization of the rule of law in Canada, please provide them in the comments section.

The social-democratic left here in Toronto have little to say about the role of courts in general in oppressing members of the working class, citizens, immigrants and migrants. There are of course particular criticisms of court decisions, but there is no critique of the systemic oppression of the courts.

The Ideology of Telling the Truth Versus Legal Proof and the Construction of a Case

The common-sense view of courts is that a person is presumed innocent until proven guilty. In the previous post, it was shown that the judge influences what is sufficient evidence to convict.

Another piece of ideology or rhetoric is that witnesses, when they testify, are to provide only the truth and nothing more nor less. From page 12:

Witnesses are simply enjoined to ‘tell the truth, the whole truth and nothing but the truth’, a fine
piece of rhetoric, devastatingly naïve and blase, but also extremely powerful. … Indeed when one adds the fact that most trials take place months if not years after the incident in question, and that the court in an adversary system is presented with two conflicting versions of that incident, it becomes incredible that any jury or magistrate can ever feel that what happened has been proved beyond question. Yet in the vast majority of trials it seems they are. The philosophical problem of how one reproduces ‘reality’ thus becomes a sociological one: how is it that in such a situation of ambiguity, conflict, subjectivity, fading or moulded memories, the judges of the facts can so readily find themselves convinced beyond reasonable doubt?

Truth is hardly an issue in courts–despite rhetoric to the contrary. What actually happens (the truth or the incident) and what is presented in court usually diverge substantially.

It is from a legal point of view and not from the point of view of common sense that is important in trials: From pages 16-17:

Adversary advocacy helps solve the philosophical problem of reproducing reality quite simply by not even attempting it. Instead the search for truth is replaced by a contest between caricatures. Advocacy is not by definition about ‘truth’ or ‘reality’ or a quest for them, but about arguing a case. The concept of a case is such a fundamental part of Western legal thought that we may take it for granted, but it is a method of proof with a history of only two or three centuries, and one which provides a neat example of the abstraction which theorists oflaw under capitalism, like Pashukanis (1978), see as an essential element of the legal form. Just as the concept of the legal subject abstracts him from his real social being, so the case abstracts from the complexity of experience, and in doing so it helps solve both the practical and the ideological problems of proof.

The “case” as opposed to the truth is the central aspect of civil and criminal trials. From page 17:

An incident and a case made out about the incident are not the same thing. Conceptions of reality are multifaceted and unbounded; cases are ‘the facts’ as abstracted from this broad amorphous raw material. The good advocate grasps at complex confused reality and constructs a simple clear-cut account of it. A case is thus very much an edited version. But it is not just edited into a minimal account-a microcosm of the incident-it is an account edited with vested interests in mind. Hence the lawyer’s approach ‘that, so far as possible, only that should be revealed which supports his case’ (Napley, 1975, p. 29). Far from being ‘the truth, the whole truth and nothing but the truth’ a case is a biased construct, manipulating and editing the raw material of the witnesses’ perceptions of an incident into not so much an exhaustively accurate version of what happened as one which is advantageous to one side. In relation to an incident, then, a case is partial in both senses-partisan and incomplete. The good advocate is not concerned with reproducing incidents but producing cases, not with truth but with persuasion.

The editing of an incident arises through the twin legal aspects of proof: relevance and admissibility. From page 15:

… the problem of ‘unbounded reality’ is tackled by the notions of admissibility and relevance.

This situation applies as much to the prosecution as it does to the defense in the case of criminal charges. Despite the rhetoric of the prosecutor being “an impartial minister of justice” (page 19), the prosecutor systematically engages in the construction of a case (rather than determining the truth of an incident) in order to obtain a conviction. Pages 19-20:

… the prosecutor has a duty to give to the defence the names of witnesses whom he does not intend to call but who do have material evidence to offer (Archbold, I979, s. 433). The word ‘material’ is the
key. It indicates that the prosecutor is assumed to present a case selected for conviction rather than one that sets out all of even what he sees as the material facts. Again, the prescription for how and to
what end examination-in-chief should be conducted-‘to adduce relevant and admissible evidence to support the contention of the party who calls the witness’-makes no exception for the prosecuting
counsel (ibid., s. 512).

At the level of practice there is no doubt that prosecutors do act out the normal advocate’s role of arguing a one-sided case:

Presenting prosecutors as representatives of justice rather than as biased individuals who construct a biased case to obtain a conviction is ideological and serves to distort the real nature of legal systems (page 21):

… the notion of the prosecutor as a ‘minister of justice’ not only functions at the ideological level both in the rhetoric of the Bar as to their role, and in general to support the view of a system of justice bending over backwards to ensure the innocent are not convicted, but is also an idea that is put to good practical use by prosecutors in court to support the credibility of their cases as
opposed to the biased nature of the defence’s:

Prosecutor: Ladies and gentlemen, my function is to elicit as much evidence as possible to put before you. My friend’s is to defend his client’s best interests. I act in the public interest. (Case 103)

Representing the prosecutor as the “public’s interest” is hardly itself the truth of the situation; the prosecutor constructs a case just as much as does the defense lawyer. Consequently, the reference to “public interest” serves to hide the truth of the situation. Truth is hardly the central focus of the legal system (but, of course, if you are found lying within the legal system, you may suffer legal repercussions–despite the irrelevance of the truth often enough in legal proceedings). Page 20:

the examples throughout this book are readily supported officially by the Fisher Report on the Confait case, in which three youths-two of whom were mentally subnormal-were convicted of murder on the basis of impossible confessions-impossible, because it was subsequently proved that Confait could not possibly have died as late as the confessions alleged. But ambiguities over the time of death were
filtered out by the police and prosecution in constructing and presenting their case. Fisher (I977) notes at the prosecutor’s courtroom examination of a pathologist on the crucial issue of the time of death:

It might well be that, if Dr C. had been given sight of the other evidence and asked to reconsider his evidence in the light of it, and had been asked the relevant questions in a neutral way instead of being asked to suggest ways in which the period for the time of death could be extended after midnight, the course of the trial would have been different and an acquittal might have resulted. (Fisher, I977, p. 223)

Or again:

… far from trying to make the time of death more precise, those concerned with the investigation and prosecution … made every effort to keep it as vague as possible. The reason for this was that they were concerned to establish a case which rested wholly or mainly on confessions which could not be entirely true unless the time of death was outside the brackets given by [the experts). (Ibid., p. 20)

Of course, most social democrats and social reformers will simply ignore this situation. They either ignore legal oppression altogether, or make vague assertions about “transforming the system” into “a more humane form” (see the first post in this series about such a claim by the social democrat Herman Rosenfeld here in Toronto). Social democrats, rather, rely on such vague phrases as the “rule of law” or “democratizing the law” and similar clichés to justify their reformist views (and, indeed, their lack of practical engagement in trying to change the economic, political and social structure).

But let us continue. The construction of a case rather than determining the truth limits the function of witnesses to respondents to lawyers’ questions (which are, of course, designed to elicit responses to favour their specific construction or version of the case). From page 22:

A further feature of the form of presenting proof is that it is interrogatory. Evidence is not presented directly by witnesses, but indirectly in response to questions by counsel. The rules prohibit leading questions but the very framing of a question, whether leading or not, and the context in which it occurs, set parameters on what can be an acceptable answer. The witness is a respondent, ‘he
is there to answer questions, that is all’ (Cockburn, I952, p. IO ), and the person who asks the questions is structurally very much in a position of control (Atkinson and Drew, I979) and quick to interrupt witnesses or warn them to confine themselves to the essential facts they are being asked about, or indeed merely to answer yes or no.

The construction of a case rather than the determination of the truth in court then presents only a partial contextualization of particular facts–a contextualization that excludes other facts deemed irrelevant to the construction of the case at hand. If witnesses offer facts deemed irrelevant, they may be reminded to confine themselves to answering the question asked of them. Pages 22-23:

Prosecutor [to victim] Did you know him [the defendant] previously?
Witness: Yes we had a scuffle the night before.
Prosecutor [sharply] Mr Sweeney, the question was very simple. Please answer yes or no. Don’t volunteer anything. Understand? (Case g8)

What is often a gray area of unclear and contradictory facts not only becomes presented as clear facts by either lawyer but is often stripped of the meaning given to them by witnesses. From page 23:

The questions ‘should be clear and unambiguous and as short as possible, each raising a single point’ (Walker and Walker, I975, p. 360) so particularising and abstracting the facts relevant for the case from the multiple possible facts of the incident. This style of presentation helps construct an idea of clear-cut proof, by filtering and controlling the information witnesses make available to the court, and so transforming what could emerge as an ambiguous welter of vying and uncertain perceptions into ‘the facts of the case’.

Interrogation means not just filtering potential information but imposing order and meaning upon it by the sequence and context of questions asked-whatever meaning it may have had to the witness, control by questioning can impose the meaning of the questioner. The case thus takes on its own logic within the framework of the ‘facts of the case’, and any other issues mentioned, hinted at or unknown, lose any relevancy to the meaning of the case that they may have had to the meaning of the incident.

It is not only the right (or rather obligation) of a witness to answer only questions posed by the lawyer that leads to the filtering of what happened; the right of the lawyer to sum up the “facts of the case” (and not the witness) can easily lead to a distortion of what the witness is saying. From pages 23-24:

Prosecutor: Weren’t you making as much noise as the others?
Accused: No I was trying to quieten them down.
Prosecutor: You were saying ‘Ssh’ in a whisper?
Accused: No I was saying ‘be quiet or you’ll get into
trouble’.
Prosecutor: And they were making a lot of noise.
Accused: Yes.
Prosecutor: So you had to raise your voice so they’d hear you.
Accused: Well maybe a wee bit.
Prosecutor: So you were shouting and bawling.
Accused: No.
Prosecutor: You just said you were! (Case 19)

The right of the advocate not just to question but to sum up-a right denied to the witnesses themselves-allows still further editing, abstraction, and imputation of meaning to be imposed on what witnesses say.

But, it may be said, the lawyer for the defense at least can do the same thing as the prosecutor (although we have already seen that prosecutors, unlike defense lawyers, use the ideological ploy of claiming to represent the “public interest”). What of the presumed need for the court to show, beyond a reasonable doubt, that the accused is guilty? In the first post, we have already shown that judges narrow proof of guilt by limiting what counts as sufficient proof of guilt.

Are the so-called legal provisions that protect the accused, such as the presumption of innocence until proven guilty, actually in truth the way they are presented as being? Or are the legal provisions more like fiction? I will pursue the matter in a future post in this series.

By the way, before my experience with a court-ordered assessment of the relationship between my daughter, Francesca, and her parents, on the one hand, and the relationship between the parents, on the other, despite calling myself a Marxist, I was naïve enough to believe that the truth was relevant in court manners. I learned the hard way–and so did my daughter indirectly–just how far from the truth court-constructed cases can be (see the series of posts with the title “A Worker’s Resistance to the Capitalist Government or State and its Representatives,” such as A Worker’s Resistance to the Capitalist Government or State and its Representatives, Part One or A Worker’s Resistance to the Capitalist Government or State and Its Representatives, Part Four). I am no longer that naïve.

Conclusion

The ideology that telling the truth is of prime importance in courts is just that–an ideology. What really happened and what is presented in court can diverge widely. Defense attorneys formulate a case and so too does the prosecution. The case is what is important–not the truth. The rules of evidence, for example, restrict what can be presented, and witnesses are asked questions that the defense or prosecution deems relevant to presenting the “case”–and not the truth.

And yet, on TV programs and in movies we are often presented with the proverbial “Do you solemnly swear to tell the truth, the whole truth and nothing but the truth?”–and yet the truth is one thing that really is irrelevant at court.

But why does the left not criticize this ideology? Should not the left expose the farcical nature of various social structures, including the legal system? Why is there not discussion about the real nature of legal proceedings? Why is there too often acceptance of the illusion–the ideology–of the rule of law?

What do you think?

The Radical Left Underestimate the Ideological Power of Employers and Overestimate Their Own Ideological Struggle

Leftists frequently refer to themselves and others as the left. This is vague to the point of being useless. Often, what is meant by being left is being paying lip-service to being anti-capitalist–without in reality doing anything to oppose the power of the class of employers as such, either ideologically or in practice.

A good example is an article written by Tim Heffernan, Simon Schweitzer, and Bill Hopwood on July 8, 2020, in the social-democratic journal Canadian Dimension (COVID-19 and Mass Unemployment: the NDP and Beyond). In that article, the writers make the following statement in relation to what kind of organizing efforts could be achieved in the face of the COVID-19 pandemic in Canada by the New Democratic Party (the social-democratic party in Canada):

Events like well-publicized video town halls, car caravans, or carefully marshalled physical protests/pickets would do a lot to shine a light on the shortcomings of the Liberal government and the capitalist system [my emphasis]. The NDP could be pushing now for public ownership of all long-term care homes, waiving of rent and mortgages during the pandemic, an end to evictions or foreclosures, and a universal public health system.

Trudeau may be popular, but he is also vulnerable, especially from the left. The NDP could start now building support for a jobs program to reconstruct the Canadian economy and society after the devastation of COVID-19 and a world economic depression. This program could combine tackling the climate crisis with providing jobs and building affordable homes–all vital for Canadians’ well-being. Restarting the economy will take major public investment–workers are short of money, and big business is continuing its refusal to invest just as before COVID-19.

There is almost a mystical quality about the claim that “the shortcomings of the capitalist system” will become evident by such short-term efforts. This overestimates vastly the efficacy of such efforts in driving home to working people and community members “the shortcomings of the capitalist system,” and vastly underestimates the staying power of the capitalist system despite such “shortcomings.”

This does not mean that there should be no efforts to address problems associated with the capitalist system or with specific problems that have emerged due to the pandemic in the context of a capitalist system characterized by the domination of a class of employers. However, let us not underestimate the tasks required to ensure that people do indeed believe that the capitalist system has shortcomings that require the elimination of the power of the class of employers and the economic, political and social structures and relations associated with that power.

The overestimation of what people actually believe can also be seen from the following:

An indication of the leftward shift in public attitudes is shown by the results of a recent survey conducted by Abacus Data in late May. Three-quarters of Canadians said they either strongly support (44 percent) or support (31 percent) a tax of one to two percent on the assets of Canada’s wealthiest to help pay for the country’s recovery. The survey also touched on the issue of government aid to corporations. Four-fifths of respondents (81 percent) said that companies receiving government assistance should be prohibited from using foreign tax havens or using the funds to pay for excessive executive salaries, to buy back shares, or hike dividends.

Belief in heavier taxation of the wealthy, or more strings attached to corporations that receive government assistance is hardly the same thing as a belief in the shortcomings of the capitalist system. Social democrats or leftist social reformers often talk of the need for corporations to pay their fair share of taxes, for example (see Co-optation of Students at School Through We Day, Part Two: The Social-Democratic Left Share Some of We Day’s Assumptions). The concept of corporations paying their fair share of taxes does not express opposition to the class power of employer.

At the provincial level, the writers refer to the British Columbia NDP (British Columbia is the most western province in Canada) and its lack of criticism of the failings of the capitalist system:

BC’s New Democrats have acted as a moderate and competent government, better than is the case in several provinces, but they have not shown a commitment to working people and have propped up capitalism rather than challenging it. The NDP is missing an opportunity to show to the rest of Canada a bold alternative to the present failing system.

The NDP, federally and provincially, do not aim to end capitalism. Has it ever really done so? It is a social-democratic or social reformist party; that is its nature. The NDP would have to be a very different kind of party to be able to offer “a bold alternative to the present failing system.” Furthermore, most working people and community members do not really believe that the capitalist system is a failing system. Where is there evidence to the contrary?

Let us listen to one of the writer’s own lack of taking seriously the need to engage in sustained ideological struggles in order to ensure that workers and community members really believe that capitalism is a failing system: Tim Heffernan is a member of Socialist Alternative, the same political party as Kshama Sawant, an elected representative to the Seattle City Council. I had a debate with Mr. Heffernan sometime ago:

Fred raises some interesting points. However, I think he’s confusing social-democratic/reformist demands with transitional demands. There’s a difference which I can elaborate on if needed but the practical contrast between them can be seen in Seattle itself where I would argue that Rosenblum encapsulated an honest and militant social democratic approach while Kshama Sawant & Socialist Alternative (also militant and honest) pushed the movement to its limits by raising the demand for 15/taxing the rich to the need for a socialist transformation of society. But I will concede that there are some in the US left who label SA as reformist too.

Also, we need to look at the concrete not the abstract. The “15 movement” in North America has seen different manifestations and the slogans/demands put forward have varied in time and place. So in Seattle in 2013-14, it was “15 Now”, in other parts of the US it became “15 and a union” and in Ontario it was ” 15 & Fairness”. Fred objects to the term “fairness” presumably because of its association with the old trade union demand of “a fair day’s work for a fair day’s pay”. Engels dealt with this demand back in 1881 where he recognized the usefulness of it in the early stages of developing class consciousness of the British working class, in the first half of the 19th Century, but saw it as an impediment at the time he was writing.

To today and “15 and Fairness”. I think the addition of “fairness” to the straight “15” demand was an excellent move. Fairness wasn’t understood as an airy fairy, feel good notion but came to be seen as shorthand for a series of extra and linked demands that could mobilise low paid and exploited workers:
– paid sick days
– equal pay for equal work (full time vs part time)
– the right to a union
– the fight against racism and discrimination
and more

If the above be bullshit, so be it. I like to think that Engels, were he alive today, would have his criticisms of the limitations of 15 & Fairness but would be overwhelmingly positive about what it has achieved so far.

Tim

To which I responded:

Hello all,

Tim’s justification for “fairness” is that it is–somehow–a transitional demand. Let him elaborate on how it is in any way a “transitional” demand. I believe that that is simply bullshit.

He further argues the following:

“Fairness wasn’t understood as an airy fairy, feel good notion but came to be seen as shorthand for a series of extra and linked demands that could mobilise low paid and exploited workers:
– paid sick days
– equal pay for equal work (full time vs part time)
– the right to a union
– the fight against racism and discrimination
and more”

How does Tim draw such conclusions? It is a tautology (repetition of what is assumed to be true) to say that it is fair if “paid sick days, equal pay for equal work (full time vs part time), etc. is considered “fair.”

Why should these goals be tied to “fairness”? I had paid sick days at the brewery, I belonged to a union (there was, however, evident racism among some of the brewery workers and there was also a probationary six-month period before obtaining a full union-wage). Was that then a “fair” situation? I guess so–according to Tim’s logic. Why not then shut my mouth and not complain since I lived a “fair” life at the brewery? But, of course, I did not shut my mouth.

But does Tim believe that merely gaining “paid sick days, equal pay for equal work (full time vs part time), the right to a union, the fight against racism and discrimination and more” is fair? If he did, he would then presumably cease being a member of Socialist Alternative since he would have achieved his goals. However, he likely does not believe that it is fair. What he proposes, then, is to lie (bullshit) to workers by not revealing what he really believes as a “transitional” demand. He does not really believe that it is fair, but he believes that such rhetoric is a useful tool in developing a movement. Frankly, I believe that such a view is both dishonest and opportunistic. Workers deserve better–it is they who continue to be exploited despite “paid sick days,” etc. Receiving paid sick days is better than not receiving paid sick days, but all the demands obtained cannot constitute “fairness.” And yet workers who buy into the rhetoric (bullshit) of fairness may believe this fairy tale (it is, after all, a fairy tale presented by social democrats often enough, among others). Rather than enlightening the workers about their situation, such rhetoric serves to obscure it and to confuse workers–support for the Donald Trump’s of the world in the making.

Such low standards. Rather than calling into question the power of employers to direct their lives by control over the products of their own labour, it implicitly assumes the legitimacy of such power. Ask many of those who refer to the fight for $15 and Fairness–are they opposed in any way to the power of employers as a class? Not just verbally, but practically? Or do they believe that we need employers? That we need to have our work directed by them? That working for an employer is an inevitable part of daily life? That there is no alternative? That working for an employer is not really all that bad?

When working at the brewery, I took a course at the University of Calgary. The professor was interested in doing solidarity work for the Polish organization Solidarity at the time. I told him that I felt like I was being raped at the brewery. He looked at me with disgust–how could I equate being raped (sexually assaulted) with working for an employer? I find that radicals these days really do not seem to consider working for an employer to be all that bad. If they did, they probably would use the same logic as their opposition to sexual assault. Sexual assault in itself is bad, but there are, of course, different degrees of sexual assault. Those who sexually assault a person may do so more violently or less violently; in that sense, those who sexually assault a person less violently are “better” than those who are more violent. However, sexual assault is in itself bad, so any talk of “fairness” in sexually assaulting someone is absurd. Similarly, any talk of fairness in exploiting someone is absurd. But not for the “radical” left these days, it would seem.

Fred

Engels, Marx’s best friend and political ally, criticized the opportunist sacrifice of the long-term interests of workers for possibly short-term gains–and this is what the so-called radical left do often enough (and Mr. Heffernan’s defense of linking the fight for improved wages and working conditions with “fairness” . Quoted from From Christoph Henning (2014), Philosophy After Marx: 100 Years of Misreadings and the Normative Turn in Political Philosophy, page 37, note 86:

This forgetting of the great, the principal considerations for the momentary interests of the day, this struggling and striving for the success of the moment regardless of later consequences, this sacrifice of the future of the movement for its present, may be “honestly” meant, but it is and remains opportunism, and “honest” opportunism is perhaps the most dangerous of all!

Let us now discuss Mr. Heffernan’s acceptance of the slogan “Fairness” alongside the fight for a minimum wage of $15 an hour, on the one hand, and the reference to shedding light on the “shortcomings of the capitalist system” on the other. Surely one of the shortcomings of the capitalist system is its unfairness. Having millions of workers working every day for an unelected manager or managers (as representatives of employers) is unfair. Losing your job through no fault of your own (because management decides it is best for the company or department) is unfair. Being treated as a means for the benefit of employers is unfair (see The Money Circuit of Capital).

There is an apparent clash here between the acceptance of the slogan “$15 and Fairness” and the apparent claim that it is necessary to shed light “on the shortcomings of the capitalist system.” This contradiction is, however, merely apparent. Mr. Heffernan does not take seriously the need to engage, systematically and persistently, in pointing out “the shortcomings of the capitalist system.”

Or does he? He claims that the slogan “Fight for $15 and Fairness” is a transitional demand. Does he have evidence that it indeed has served to change the aims of workers from fighting for reforms within a system characterized by a class of employers to an aim of fighting to abolish their class power? I am still waiting for Mr. Heffernan to provide such evidence.

In fact, it is very difficult to shed light “on the shortcomings of the capitalist system” in such a way that working people and community members will take seriously such shortcomings and act upon such a belief. Frequently, what happens is that one aspect of the capitalist system is criticized whereas the system as such is simply assumed to be unchangeable. This is in fact the assumption of the slogan “Fight for $15 and Fairness.”

Mr.Heffernan’s evident acceptance of the ideology of “Fight for $15 Fairness and Fairness” goes hand in hand with substantial underestimation of the need for and difficulty of sustained ideological criticism of the “shortcomings of the capitalist system.”

Imagine a substantial number of of Canadian believing that the capitalist system has such short comings that they are willing to organize and struggle to overcome such a system. In other words, they would have to have similar aims. How far are we from achieving such common aims among millions of workers and community members? The distance between where we are and where we need to be is great, and Mr. Heffernan’s acceptance of the slogan “Fight for $15 and Fairness” does nothing to bridge the gap; to the contrary, it contributes to the maintenance of such a gap. References to shedding light on “the shortcomings of the capitalist system” ring hollow.

Mr. Heffernan, like many other self-styled radical leftists, does not really aim to shed light on “the shortcomings of the capitalist system.” If they did, they would persistently engage in exposing such shortcomings. Furthermore, they would distinguish shortcomings that arise from shortcomings of the capitalist system as such and shortcomings that arise from a specific form of capitalism. Shortcomings arising from capitalism as such cannot be reformed whereas shortcomings arising from a specific form of capitalism can be reformed without changing the basic nature of capitalism. Admittedly, it is sometimes difficult to distinguish the two, but we need to make an effort at distinguishing them so that we can distinguish between actions that question the very foundation of the class power of employers and actions which that class power can co-opt.

We need to realize that aiming for a socialist society will require much ideological struggle in order to clarify our aims and to move, collectively, towards the common aim of abolishing the class power of employers and its associated economic, political and social structures.

There is no such movement here in Toronto. It needs to be created. I suspect the creation of such a movement is also required in many parts of the world since it is mainly social democrats who dominate the left these days–despite their radical-sounding phrases.

The Real World of the Rule of Law: Courts as Oppressive Organizations, Part One

Introduction

The following series of posts are meant to complement the series of posts on the issue of reforming versus abolishing the police (see for example Reform or Abolition of the Police, Part One or Reform Versus Abolition of the Police, Part 8: The Police and the Political Economy of Capitalism).

The following is mainly a series of quotes from the book by Doreen McBarnet (1983) Conviction: Law, the State and the Construction of Justice as well as short commentaries related to the quotes. I use her book as a way of exposing the real nature of the rule of law and the role of courts in both hiding the real nature and enforcing the real nature of the rule of law.

A note on the limitations of the following: Ms. McBarnet draws on English and Scottish law; the situation here in Canada may be somewhat different. If anyone knows of sources relevant for determining the real operationalization of the rule of law in Canada, please provide them in the comments section.

The social-democratic left here in Toronto have little to say about the role of courts in general in oppressing members of the working class, citizens, immigrants and migrants. There are of course particular criticisms of court decisions, but there is no critique of the systemic oppression of the courts.

Alternatively, some social democrats imply that the court system somehow embodies the “rule of law,” which is something positive. Thus, the social democrat Bruce Campbell (Adjunct Professor York University, Department of Environmental Sciences (and former Executive Director (1994-2015) of the social-democratic organization Canadian Centre for Policy Alternatives (CCPA)), in July 2008, published the article “A Denial of Fundamental Justice: Conservatives’ no-fly list violates rights, rule of law” in the CCPA journal The Monitor:

Since September 11, 2001, both Liberal and Conservative governments have introduced a vast array of measures that they claim are needed to combat terrorism. Some are enacted through laws such as the Public Safety Act and the Anti-Terrorism Act. Many others have come into being through bilateral agreements with the United States, such as the Smart Border Declaration and Action Plan, and the Safe Third Country Agreement.

These measures, which dramatically expand state power at the expense of our deeply held rights and freedoms and the rule of law [my emphasis], were not needed to deal with a genuine security threat. They were introduced mainly in response to U.S. government intimidation to bring Canadian security measures into line with draconian U.S. practices, and from Canadian business wanting to “do what it takes” to keep trade flowing across the border. (This harmonization process continues under the North American Security and Prosperity Partnership.)

Components of the Rule of Law

Ms. McBarnet’s book gives the lie to the idea that there is such a thing as the “rule of law” in the sense of the application of laws in a consistent and fair manner. Of what does the rule of law supposedly consist? Page 2:

The conviction process in the legal sense poses a problem for explanation because it raises a strange paradox. All the rhetoric of justice we are so familiar with presents a picture of a system of criminal justice bending over backwards to favour the defendant rather than the prosecution. Every accused has the right to a fair trial. He is innocent till proved guilty; it is the prosecutor who must prove his case. What is more, the accused has a right to silence, he is not a compellable witness and he need not incriminate himself, so that the prosecutor has to be able to prove his case without the cooperation of the accused

Wow. These are an impressive list of legal rights–if they exist. Did Mr. Campbell inquire into whether in fact they do exist, or did he assume that they existed?

The Paradoxes of the Rule of Law

Those who refer to the rule of law without further ado have some explaining to do since the rule of law ends up resulting in some interesting effects that seem to contradict its positive nature. Page 2:

The accused need prove nothing, but can choose if he wishes to establish a defence case to counter that of the prosecution with the less stringent requirement not of ‘proof’ but merely of raising a reasonable doubt, and he may use legal expertise to do that. The whole flavour of the rhetoric of justice is summed up in the idea that it is better for ten guilty men to go free than for one innocent man to be wrongly convicted. Why then the paradox that the vast majority of cases processed through a criminal justice system so geared to favouring the accused results in a finding of guilt?

The social-democratic left, like Bruce Campbell, remain silent about this fact of the real rule of law. Why is that? Perhaps because they cling to the rhetoric of the rule of law and hence to its ideology rather than to its real nature?

The social-democratic or social-reformist left, by clinging to such an ideology, contribute to the perpetuation of the oppressive nature of law.

Let us continue. Page 2:

In the rhetoric of justice everyone is entitled to a fair trial; yet most defendants plead guilty. In the rhetoric of justice any reasonable doubt should result in acquittal; yet for the clear majority of cases the court is convinced beyond reasonable doubt, despite all the rhetorical hamstrings on police and prosecution, that the accused is guilty. Why?

One obvious answer is that mainly the guilty pass through the criminal justice system and therefore are indeed found guilty because they are guilty. Page 2:

One answer might be quite simply that the defendants are guilty; the case against them is too strong to be plausibly disputed; the facts speak for themselves. Sir Robert Mark has suggested indeed that the very limitations placed on police and prosecution bringing a case to court make it highly probable that only the indisputably guilty come through the process at all.

However, being judged guilty of a crime is not a self-evident fact. What activities are defined as crimes and the procedures and the processes for determining whether an activity constitutes a crime are not self-evident; they form part of a social process of defining an activity as a crime. Page 3:

But this is where we come to the process of conviction in its other, subjective, sense. Given the ambiguities and uncertainties that dog real-life incidents, how are clear-cut facts of the case and strong cases produced? How do judges and juries come to be persuaded beyond reasonable doubt by one case or another? Evidence, the facts of the case, strong and weak cases are not simply self-evident absolutes; they are the end-product of a process which organises and selects the available ‘facts’ and constructs cases for and in the courtroom. Behind the facts of the case that convince judges or juries to an unambiguous verdict lies a process of construction and a structure of proof that need to be probed and analysed.

… What exactly are the procedures of criminal justice that are so readily assumed to protect the accused? For though they are constantly referred to in theory and in practice they are remarkably little investigated.

Both the social-democratic left and the right, despite their many differences, share the assumption that the rule of law provides many safeguards for protecting the rights of the accused. Page 5:

Throughout the debate of the 1970s both those advocating law geared more to crime control, like Sir Robert Mark, or his successor as Metropolitan Police Commissioner, Sir David McNee, and those advocating more effective civil rights, like the National Council for Civil Liberties [NCCL], tend to assume that the law does incorporate safeguards for the accused. Hence from one perspective the police are too hamstrung by the law to do their job and the guilty go free; from the other, the law does not work because the police abuse it to secure convictions. So NCCL writers note:

All policemen are under the same pressure; bend the rules to deliver the goods in the form of convictions. . . . It is the abuse of police powers in these circumstances-arrest, search and questioning that has created the most intractable police/civil liberty problem in recent years. (Cox, 1975, p. 164. [Ms. McBarnet’s emphasis].

For both the the social-democratic left and the right, the problem is not the rules of law themselves but the abuse of those who are supposed to uphold them. Pages 4-5:

The assumption has been in effect that the law incorporates rights for the accused, and the problem has been simply to ask why and how the police and courts subvert, negate or abuse them.

The Rule of Law as Rhetoric Versus the Rule of Law as Reality

The issue is not this or that particular abuse of the law by judges (courts) and the police; it is obvious that that happens. The issue is whether law as it is operationalized is itself an abuse.

Social democrats and the right both operate at the level of the rhetoric of the rule of law–and not at the level of real law, which is the operationalization or the putting into practice of law on a daily basis. Page 6:

But does the law incorporate due process, safeguards for the accused, civil rights? The vague notion of ‘due process’ or ‘the law in the books’ in fact collapses two quite distinct aspects of law into one: the general principles around which the law is discussed-the rhetoric of justice-and the actual procedures and rules by which justice or legality are operationalised. The rhetoric used when justice is discussed resounds with high-sounding principles but does the law incorporate the rhetoric? This cannot simply be assumed; the law itself, not just the people who operate it, must be put under the microscope for analysis.

It is necessary to inquire into whether the legal system actually does what it claims to do: to protect the rights of citizens (if not immigrants and migrants) from abuse. Page 8:

To question whether the law incorporates its own rhetoric is to ask whether deviation from standards of justice and legality are not merely the product of informalities and unintended consequences at the level of petty officials, but institutionalised in the formal law of the state. This has implications for how the state rules. One of the essential justifications of the democratic state is precisely that it is based on legality, that the relationship between the state and the individuals of civil society is one governed not by the arbitrary exercise of power but by power exercised within the constraints of law. The criminal justice process is the most explicit coercive apparatus of the state and the idea that police and courts can interfere with the liberties of citizens only under known law and by means of due process of law is thus a crucial element in the ideology of the democratic state. To question whether the law in fact incorporates the rhetoric of justice is to question the ideological foundations of the state. It is to raise the possibility of contradictions within dominant ideology and questions about the mechanics of its management. It is to raise questions about what the whole idea of the rule of law means and how it operates.

The above quotes are taken from chapter one of Ms. McBarnet’s book. Chapter two of her book is titled “Convincing the Court: The Structure of Legal Proof.” She has this introductory thing to say about the rhetoric (not the reality) of legal proof:

The core of the liberal democratic concept of criminal justice is that a person is innocent until proved guilty. Justice does not rule out punishment; on the contrary it deals in ‘just deserts’. What the ideology of justice is opposed to is arbitrary punishment. The important criterion in dealing out ‘just deserts’ is that the recipient should have been proved guilty.

…

The trial is where that process of proof is not only carried out but put on public display-where justice has not only to be done, but be seen to be done. The plausibility of the trial as a process of proving the accused guilty is one criterion by which the ideology of justice stands or falls.

One of the issues is what judges understand by “reasonable doubt.” In cases where there is a jury, it is still the judge who decides what constitutes sufficiency of proof; it is the jury (if there is one) that decides whether what is offered as proof is credible or not. In other words, if the jury finds certain events are indeed facts (are credible), the number of credible facts will determine whether the accused is considered guilty or not (and the number of pieces of credible facts is determined by the judge). Page 13:

So the courts have drawn a line at what will do as proof. Prosecutors do not have to prove everything a jury might want to know, they only have to produce a sufficiency of evidence. Juries have to be convinced beyond reasonable doubt-but they cannot choose the issues that they have to be convinced about: sufficiency and credibility are distinguished in law. The law defines how much evidence constitutes ‘sufficient’ to prove a case and it is the judge’s role to decide that this standard has been met. The jury’s role is to decide whether they believe it. But the legal demands involved in ‘sufficiency’ are often rather lower than one might expect. Indeed from judges’ summing-up addresses it seems clear they recognise they have to persuade juries-whose only knowledge of the law is after all the rhetoric-that enough evidence is not as much as they might think.

Ms. McBarnet then provides evidence from real court cases of how judges impose their own view of what constitute sufficient evidence to convict (to find the accused guilty as charged). Pages 13-14:

In Case 103 where the accused was charged with theft but the goods were still alongside the car they had been stolen from, the judge took pains to point out this was not mere attempt but legally constituted theft:

But note this, ladies and gentlemen, [then he picked up and read from a legal text] it is sufficient to complete the crime of theft if the thing be removed for the shortest time and [loudly] but a small distance … and he continued for two minutes with the details.

The same applies in another case:

In Case 91 the judge addressed the jury:

You might expect you would need an eye-witness for proof, but that is not necessary in cases of theft. There are facts and circumstances from which theft can be inferred without eye witnesses. Here the Crown can infer theft according to the doctrine of recent possession …

Again, in another case:

In Case 93, where one of the charges was breach of the peace, the judge (the same one as in Case 103) again read from a law book on the definition of the offence (having prefaced the law with the comment that this was a common but fundamental offence, ‘because without the peace there is no order, and if there is no order there is certainly no civilisation as we have been brought up to know it’):

Breach of the peace is behaviour which “might reasonably be expected to lead to lieges being upset”. Note that “might be”. There is no need to lead evidence that anyone was upset.

He continued on the question of evidence for the second charge of assault with an ornamental sword:

It was perhaps revealing that the accused’s idea of assault was an idea held by many-hitting a person. That is not the law. An assault in law [and out comes the book again] is an intentional attack on the person of another whether it injures him or not. To aim a blow at a victim is an assault though the blow never lands, to set a dog on someone, to make a gesture of violence are all assaults. Disabuse yourself of the idea that there’s got to be blood, got to be bruises. To aim a blow, a fist, a boot [pause] a sword,
[pause] is assault.

The reality of what constitutes “reasonable doubt” and the rhetoric of the prosecutor having to prove “beyond a reasonable doubt” gives the lie to those who claim that we merely need to transform the legal system, such as the social democrat Herman Rosenfeld, here in Toronto. Let us see what he writes:

Shouldn’t that institution [the police] be thoroughly transformed, by political struggle, into a more humane, limited and less autonomous one?

(For a criticism of his defense of the idea of “transforming” the police into “a more humane, limited and less autonomous institution,’ see, among others, the post Reform or Abolition of the Police, Part One).

Although Mr. Rosenfeld refers to the police, his logic applies as well to the courts. Perhaps Mr. Rosenfeld and other social democrats will provide us with a description of how they propose to reform the courts in such a manner that judges do not influence how “reasonable doubt” is defined.

My prediction is that they will neither provide any such description nor, for that matter, will they actually attempt to “transform the courts (and police) into “a more humane, limited and less autonomous institution.” I have not seen any articles written by Mr. Rosenfeld that indicates that he has initiated any attempt to “transform the police (and courts] into a more humane,, limited and less autonomous institution.”

This should not surprise those who read this blog. Social democrats often. on the one hand, accept the rhetoric (ideology) expressed by various social institutions and, on the other, do not lift a finger to really change those institutions in any fundamental way.

I will continue quoting from McBarnet’s book and providing comments in the next post in this series.

Reform Versus Abolition of the Police, Part Six: Unions and the Police

I read an article on unions and the police that I thought would be useful for readers: George Rigakos & Aysegul Ergul (2011), “Policing the Industrial Reserve Army: An International Study,” in Crime, Law & Social Change, Volume 56, Number 4. (see https://www.researchgate.net/publication/227052617_Policing_the_industrial_reserve_army_An_international_study). I came across the article while researching the function of the police in a society characterized by the domination of a class of employers. The article explains, indirectly, why social democrats like Herman Rosenfeld have a hostile attitude towards more radical political positions (see earlier posts in this series for a criticism of Mr. Rosenfeld’s social-democratic position on the issue of the abolition of the police).

In the article, the authors argue that there is empirical evidence (factual data used as evidence for a hypothesis or theory) among many countries that shows that unions, at the micro level, function to limit exploitation of workers but, at the macro level, they may well function to limit the radical nature of the working class. This is consistent with some of my own experiences with and observations of unions–as well as the social-democratic left.

Let us first look at their arguments and evidence for their view that unions limit the radical nature of the working class (page 330):

After the Second World War, the dominant form of trade unionism recognized the primacy of the liberal democratic state and accepted the capitalist organization of production and private property. The revolutionary Marxist claims of overthrowing the state through the destruction of the capitalist mode of production were replaced by efforts to generate a dialogue and social pact among labour, capital and the state [158]. To put it differently, the goal of trade-unions to mobilize working class power for revolutionary purposes was abandoned in exchange for the legal recognition of collective bargaining and thus the state of trade-unions became crystallized as that of political actors representing an organized interest group within liberal democracy. The internalization of the attitude of “peaceful accommodation with capitalist interests” caused a deradicalization and depoliticization of the trade union movement [158]. The effects of a paradigm shift from Keynesianism to neoliberalism, therefore, have deeply cut into both trade-union membership and political activism.

In the context of the accumulation process of capital (the reinvestment of the surplus produced by workers), some workers are thrown out of work (the unemployed, or what Marxian economists call the reserve army of labour), others are insecure in their work and some are more secure.

The end of the social pact among “labour, capital and the state [government]”–at least from the point of view of capital, and increasingly of the state or government–has left workers with less protection from the onslaught of the vicious nature of a society dominated by a class of employers and the associated economic, political and social relations. There has been an increase in inequality in terms of income and wealth in the neoliberal era of privatization, deregulation and trade liberalization (page 342):

The income gap between people living in the top fifth of the richest countries and those living in the bottom fifth was 30:1 in 1960, 60:1 in 1990, and 74:1 in 1997. In 2005, the Human Development Report stated “the world’s richest 500 individuals have a combined income greater than that of the poorest 416 million.” In the same year the 2.5 billion people, or 40% of the world’s population, that lived on less than two dollars a day accounted for 5% of global income while the richest 10%, almost all of whom lived in high income countries, accounted for 54% of global income [163]. According the World Institute for Economic Research [31], the richest two per cent of adults in the world owned
more than half of global household wealth while the poorer 50% of the world’s adults owned barely 1% of global wealth.

The increase in inequality in the neoliberal era has led to increased insecurity. You would think that with increased insecurity and inequality, there would be a need for more police, both private and public. However, what is interesting is how the presence of unions has generally not led to increases in the level of policing. Ironically, Mr. Rosenfeld, in his criticism of the idea of the abolition of the police, refers to the concept of “legitimation”:

In reality, though, bourgeois democratic institutions are not simply a façade for a bloody and murderous dictatorship over the poor and colonized. Yes, there are instances of state acts of murder and even terrorism. The liberal democratic state and institutions facilitate private capital accumulation and are structured in ways which seek to repress, diffuse and co-opt alternative political and social movements, but these are mediated by the necessities of legitimating capitalism. The relative power, political ideology and organization of the working class and colonized Indigenous peoples also affect the character of liberal democracy (and in the subordinate strata, there are forms of class differences and other contradictions that also matter).

Yes, the working class can modify or reform certain economic, political and social institutions through their strength. However, Mr. Rosenfeld does not look at the opposite process: how this modification leads to the modification of the demands of the working class, blunting their power to oppose the class of employers as an independent class.

This limitation of the potential power of the working class can be seen in the lack of the need for increased policing despite increased levels of insecurity–because most unions now serve at the macro level to legitimate the continued existence of the class of employers (page 354):

Union membership was unrelated to policing employment, whether public, private or
combined for all countries. But when post-USSR states were removed from the sample a
statistically significant inverse relationship between private security or total policing employment and unionization appeared. … This finding provides empirical evidence for the claim that unions may actually provide a surrogate policing function for capital in western nations. That is, a stronger union presence lessens the necessity for more policing. This is particularly evident among northern European (and Ghent countries [Belgium, Denmark, Finland, Iceland and Sweden) where the average unionization rate is 25.6%, the highest by far among all regions, but the average total policing rate is 453.4, the lowest among all regions.

The reason for excluding the former USSR countries is because in those countries there is indeed a positive relationship with high unionization and high levels of public policing–undoubtedly because of the centralized policing function of the former USSR-countries (page 354):

In former USSR countries, on the other hand, a high unionization rate (12.5%) coincides with more policing, particularly public policing (620.6) as the massive post-totalitarian apparatus has been largely maintained in the form of new protection rackets.

Should workers then not form or join unions? This is hardly what is being argued. It is vital for workers to protect themselves–but of course this protective function should be such that it does not legitimate the power of employers as a class. Furthermore, unions that rely on the organizational strength of their members rather than mainly on the power of the government or the state to enforce the protective function are superior.

At the macro level, modern unions often function to legitimate the class of employers, thereby serving a legitimating function for that class. At the micro level, however, they do serve as organizations of resistance (provided that they are indeed independent organizations at the micro level) (page 355):

What labour militancy does seem to provide, however, is a reduction in the rate of exploitation as measured by the extraction of surplus-value. Thus, surplus-value is inversely correlated to strikes and lock-outs)even when post-USSR states are omitted. There is no direct relationship, however, between policing employment and strikes and lock-outs. This suggests that while strikes and lock-outs may not directly threaten capitalist relations as measured by the necessity to employ more police and security, such work interruptions do have a statistically significant impact in reducing rates of exploitation. As Marxian political economy would indicate, the data also suggest unions are adept at checking exploitation by pushing for more favourable wage and hourly conditions but this does not translate into any direct threat to the established order of security as indicated by more policing.

In other words, unions are contradictory. On the one hand, they function to legitimate the power of the class of employers (even if that is not their intention), but simultaneously they function to limit the exploitation of workers.

Another way in which the legitimating function of unions can be seen is when mass movements that clash with the police arise. Unions often are aloof from such movements, or even engage in conservative attacks on such movements. For example, in France (page 358):

The 2006 youth protests occurred throughout the country as an opposition to the new labour law (First Employment Contract) whose goal was to reduce high youth unemployment through giving more flexibility to employers. In other words, the bill was to make it easier for employers to fire young workers without any compensation. Consequently, the youth responded to this bill by demonstrating on the streets, occupying universities, and blocking university activities including strikes. The insistence of youth in their opposition to the First Employment Contract eventually brought them support from unions. But why did the trade-unions not resist such a bill in the first place? How would the unions have acted had the youth not challenged the First Employment Contract? The unions’ (overly) cautious attitude in responding to issues concerning the labour market and the vested rights of workers is one of the most overt examples of their “policing” role in society. Perhaps the low employment and unionization rates among Parisien youth made them unrestrained by union membership, necessitating massive police intervention. …

It should come as no surprise by now that France and Greece have among the highest rates of total policing employment in Europe.

What should the radical left do? It depends, of course, in part on “where they are at.” They may be unemployed, retired or working (in unionized jobs, professional jobs, insecure jobs and so forth). What can generally be said is that the class issue, or the macro issue, needs to be addressed wherever possible. At the same time, it is of course necessary to engage in tasks that protect the immediate interests of workers.

What they should not do, though, is engage in legitimizing acts and rhetoric for the class of employers–which is what they also often do, in which case they need to be criticized.

Do Workers Work for a Particular Employer or for the Class of Employers? Part One: A Limitation of Some Radical Left Critiques of Capitalist Relations of Production and Exchange (A.K.A. Capitalism)

While doing some research for a post on this blog, I became aware of how many Marxists claim that workers really work for the capitalist class or the class of employers rather than a particular employer. I asked my wife, who worked in Guatemala as a saleswoman, whether she thought that she worked for a particular employer or for the class of employers. She replied that she worked for a particular employer.

Although this is true in one way, it is also false in another way (I will elaborate on this below). Nonetheless, from the point of view of the experience of workers, they generally conceive of the relation between their working lives and their employer as a particular relation and not as a class relation. Marxists often ignore this concrete experience of workers and, as a consequence, limit their capacity to communicate with workers and to organize them.

First, I would like to provide quotes from several radical socialist sources to show that they often ignore the concrete experience of workers in relation to employers. All words in boldface are my emphasis.

From Alexander Berkman (2003), What is Anarchism, page 11:

Are you not compelled to work for an employer? Your need compels you, just as the highwayman’s gun. You must live, and so must your wife and children. You can’t work for yourself; under the capitalist industrial system you must work for an employer. The factories, machinery, and tools belong to the employing cl ass, so you must hire yourself out to that class in order to work and live. Whatever you work at, whoever your employer may be, it always comes to the same: you must work for him. You can’t help yourself You are compelled.

In this way the whole working class is compelled to work for the capitalist class. In this manner the workers are compelled to give up all the wealth they produce. The employers keep that wealth as their profit, while the worker gets only a wage, just enough to live on, so he can go on producing more wealth for his employer. Is that not cheating, robbery?

Again: From Socialist Party of America, National Platform, Adopted by the Thirty-Sixth National Convention, University of Akron, Akron, Ohio, July 18-23, 1983, page 1:

Under capitalism, society is divided into two principal classes–the capitalist class and the working class. The capitalist class consists of the wealthy few who own the means of production and distribution. The working class consists of the vast majority who own no productive property and who must in order to live, seek to work for the capitalist class, or for the present government it controls.

Another example is from Great Britain (from the website Socialist Party of Great Britain):

Today, a world working class is forced to work for a wage or salary, and confronts a world capitalist class who live off unearned incomes from rent, interest and profit.

This one-sided emphasis on the capitalist class also can be seen in the following 1904 report by James Moroney, Report of the Australian Socialist League to the International Socialist Congress at Amsterdam:

The Working Class, in order to secure food, clothing, shelter and fuel, must sell their labor-power to the owning Capitalist Class — that is to say, they must work for the Capitalist Class [my emphasis]. The Working Class do all the useful work of Society, they are the producers of all the wealth of the world, while the Capitalist Class are the exploiters who live on the wealth produced by the Working Class.

To be sure, there is recognition that the workers do work for a particular employer. From James O. Moroney (1904), the Australian Socialist League. Report of the Australian Socialist League to the International Socialist Congress at Amsterdam:

In most of the Australian States the railways, and in some the tramways, are owned and managed by the government on strictly commercial principles. In other directions the State has extended its functions and employs labor direct. But the worker remains in Australia, whether employed by the State government or the individual private employer, and exploited wage slave, as is his exploited fellow wage slave in other countries.

These two views are often not integrated in a coherent manner. Workers do both. The reality of working for a particular employer in the private sector hits home when the private employer closes shop for whatever reason–as the workers working for GM in Oshawa, Ontario, relatively recently experienced; around 2,500 direct workers were out of work due to the shutting down of the GM auto plant in Oshawa in December, 2019.

Workers who work in the public sector may also experience severance from their particular employer as government departments are down-scaled or reorganized. They do not just work for “the government,” but in a particular field, department or political division.

This experience of working for a particular employer needs to be recognized when radicals write and give speeches. Marx recognized that the form in which workers work for the class of employers, which constitutes their immediately lived experience, needs to be taken into account. From the notebooks Marx drafted in 1857-1858 called the Grundrisse (Outlines), in the Collected Works of Marx and Engels (Marx’s best friend and comrade), Volume 28, pages 392-393):

To start with, the first presupposition is the transcendence of the relation of slavery or serfdom. Living labour capacity belongs to itself and disposes by means of exchange over the application of its own energy. The two sides confront each other as persons. Formally, their relation is that of equal and free exchangers. That this form is mere appearance, and deceptive appearance at that, appears, as far as the juridical relationship is concerned, as an external matter. What the free worker sells is always only a particular, specific measure of the application of his energy. Above every specific application of energy stands labour capacity as a totality. The worker sells the specific application of his energy to a specific capitalist, whom he confronts independently as a single individual. Clearly, this is not his [real] relationship to the existence of capital as capital, i.e. to the class of capitalists. Nevertheless, as far as the individual, real person is concerned, a wide field of choice, caprice and therefore of formal freedom is left to him. In the relation of slavery, he belongs to the individual, specific owner, and is his labouring machine. As the totality of the application of his energy, as labour capacity, he is a thing belonging to another, and hence does not relate as a subject to the specific application of his energy, or to the living act of labour. In the relation of serfdom, he appears as an integral element of landed property itself; he is an appurtenance of the soil, just like draught-cattle. In the relation of slavery, the worker is nothing but a living labouring machine, which therefore has a value for others, or rather is a value. Labour capacity in its totality appears to the free worker as his own property, one of his own moments, over which he as subject exercises control, and which he maintains by selling it. [my emphasis]

John Sitton draws out the effect of the immediate experience of working for a particular employer on individual members of the working class. From John Sitton, editor, (2010), Marx Today Selected Works and Recent Debates, pages 19-20:

Since the wage-laborer must sell his or her labor to someone in the class of employers, Marx often states that this “freedom” is an illusion. “The Roman slave was held by chains; the wage-laborer is bound to his owner by invisible threads. The appearance of independence is maintained by a constant change in the person of the individual employer, and by the legal fiction of a contract.” But Marx himself admits that this “appearance” of individual freedom is reinforced by the fact that the worker, unlike the slave, is also an autonomous consumer. “It is the worker himself who converts the money into whatever use-values he desires; it is he who buys commodities as he wishes and, as the owner of money, as the buyer of goods, he stands in precisely the same relationship to the sellers of goods as any other buyer. Of course, the conditions of his existence—and the limited amount of money he can earn—compel him to make his purchases from a fairly restricted selection of goods. But some variation is possible as we can see from the fact that newspapers, for example, form part of the essential purchases of the urban English worker. He can save or hoard a little. Or else he can squander his money on drink. But even so he acts as a free agent; he must pay his own way; he is responsible to himself for the way he spends his wages.” Given this reality, Marx did not anticipate how class identity could be effaced by the status of consumer. The status of independent— although severely constrained—owner of the commodity labor-power, and of owner of money who can spend it as he or she pleases, makes it easy to see how in people’s minds class differences come to be considered as merely differences in income.

This “appearance” of freedom is bolstered in an additional way. As Marx acknowledges, although class situation greatly reduces the range, there are some differences in individual wages depending on skill. For a worker, there is therefore “an incentive to develop his own labor-power” so as to increase his or her wages. “[T]here is scope for variation (within narrow limits) to allow for the worker’s individuality, so that partly as between different trades, partly in the same one, we find that wages vary depending on the diligence, skill or strength of the worker, and to some extent on his actual personal achievement. Thus the size of his wage packet appears to vary in keeping with the results of his own work and its individual quality. . . . Certain though it be that the mass of work must be performed by more or less unskilled labor, so that the vast majority of wages are determined by the value of simple labor-power, it nevertheless remains open to individuals to raise themselves to higher spheres by exhibiting a particular talent or energy.” Marx is not explicit, but, combined with the possibility of changing one’s employer, this opens up the prospect of some, although small, measure of social mobility. Marx is correct that this does not abolish the essential nature of wage-labor as oppression. However, Marx greatly underappreciated the effects that even these limited opportunities have on an individual’s perception of life under capitalism and the sense of belonging to a class.

The possibility of advancing one’s economic situation by developing one’s individual talents or simply through greater “diligence” encourages many members of the working class to believe that one can “make it” through hard work. It is no surprise that many people believe that an individual’s prospects are not determined by class structure but by individual virtues or the lack thereof. These facts of working class existence, raised by Marx himself, make the class analysis of capitalism, whatever its broader theoretical cogency, less convincing to great numbers.

In the Manifesto, Marx asks, “Does it require deep intuition to comprehend that man’s ideas, views and conceptions, in one word, man’s consciousness, changes with every change in the conditions of his material existence, in his social relations and in his social life?” What Marx failed to understand is that freedom to choose employers, the equal autonomy of consumers, the limited but real possibilities for individual and generational advancement, and the limited but real political possibilities of democratically managing the economy are the lived experiences of individuals under capitalism. These shape how people today perceive their lives and how they perceive the legitimacy of the existing order. For the Marxian tradition to find a larger audience, it must be able to connect its broad theory of capitalism as a class-structured society with the actual experiences of individuals in capitalist society, rather than dismissing those freedoms as illusory. Workers do not experience them as illusory, and this makes it plausible for them to blame their economic situation on themselves, rather than on a class structure.

It is not only Marx who underestimated the importance of the lived experiences of individuals under capitalism. The radical left here in Toronto (and probably elsewhere) fail to take into account the importance of the often ideological nature of that experience and how it must be subject to criticism when any opportunity arises. The radical left here do not engage in any systematic recognition of the limited nature of the lived experiences of workers and the need to engage in criticism of such experience in order to connect up systematically the lived experiences of workers critically with the class structure. Often they call for revolution–without considering the need to engage systematically and in the long-term with the lived experiences of workers.

Alternatively, they indulge the beliefs of the workers (fearing to criticize them), practically becoming social democrats or social reformers, thereby failing to develop the critical capacity of workers and community members. Either way the lived experiences are not transformed but remain as they were before.

Indeed, social democrats and social reformers often limit themselves to focusing on the immediate exchange between workers and employers–as I pointed out in another post (see Basic Income: A Critique of the Social-Reformist Left’s Assumptions and Analysis: Part Two). The social-democratic or social-reformist left often pay lip service to class relations and workers working for the class of employers, but they then commit the opposite mistake to those among the radical left who one-sidedly focus on working for the class of employers.

I will address the issue of the one-sided error of focusing mainly on individual employers or group of employers while not really addressing the issue of working for the class of employers in the next post.

Working for an Employer May Be Dangerous to Your Health, Part Six

Injuries, disease and death are the common experiences of many Canadian workers–and undoubtedly workers in all countries dominated by the power of a class of employers. This is so since, on the one hand, profit is the driving force of human life in such societies (see The Money Circuit of Capital for an explanation of this). On the other hand, workers in such a society are themselves costs, on the same level as the machinery, buildings, computers, raw material and other objects they use to produce commodities. The pandemic has shown this, unfortunately, to be the case, especially in the United States, as workers have been sacrifice in order to open up an economy dominated by a class of employers.

Even apart from the pandemic, the fact that human beings are both living beings and self-conscious living beings is used by the class of employers in order to obtain as much profit as possible in the shortest possible time. To do so involves a reduction in the costs of production by reducing the number of workers or by reducing the costs of the means of production. By intensifying work through the reduction of the number of workers to the bare minimum, employers produce conditions that can easily result in injury, disease or death. By focusing on cutting costs to the maximum by, for example, not purchasing necessary safety equipment, employers also produce conditions that can easily result in injury, disease or death.

This situation is not generally recognized by capitalist governments or states. The sacrifice of workers for the benefit of the class of employers is often hidden–with the implicit or explicit collusion of the capitalist government or state. Thus, Bob Barnetson points out, in The Political Economy of Workplace Injury in Canada, page 173:

The purpose of this book was to examine how Canadian governments prevent and compensate workplace injury, who benefits from this approach, and how they benefit. The first four chapters suggest that governments do a poor job of preventing injury. The use of ineffective regulation appears to represent intentionally prioritizing profitability over safety. And the state has contained the ability of workers to resist this agenda by shaping the discourse around injury and the operation of these systems. Examining injury compensation reveals how seemingly neutral aspects of claims adjudication and management financially advantage employers and limit the ability of workers to resist unsafe work.
Together, this analysis suggests that the prevention and compensation of workplace injuries are not solely technical or legal undertakings, but intensely political ones that entail serious consequences — most often for workers. This conclusion is quite upsetting. But the facts are difficult to dispute. Whatever the drawbacks of Canadian injury statistics, they demonstrate that hundreds of thousands of workers are injured each year on the job. This raises two fundamental questions. First, why are so many seriously injured every year? And, second, why don’t governments do something about it?

Unions, of course, do seek to protect workers from the more vicious forms of health and safety violations. However, although the intentions of union reps may be praiseworthy, should we not wonder why they fail to question the basic source of injuries, disease and death in workplaces in modern society: the existence of a class of employers that uses human beings as means for purposes not defined by those who work?

All radicals should ask union reps the same questions: “First, why are so many seriously injured every year? And, second, why don’t governments do something about it?” They should also ask them: Why do union reps use such clichés as “decent work,” “fair contracts,” “economic justice,” “fairness,” “fair labour laws save lives” when the situation workers face, whether unionized or non-unionized, is indecent, unfair and unjust–a situation that leads to so many injuries, diseases and deaths?