Life as a political philosopher in the United Kingdom sure is interesting these days. Less than half a year after I moved to Scotland, the UK formally left the European Union. As it did so, it dragged an unwilling Scotland along with it – about two-thirds of Scotland had voted to remain in the EU, the highest proportion of all the UK’s constituent countries. The COVID-19 pandemic, which struck shortly afterwards, widened the gap between Scotland and the rest of the UK yet again. While the UK government led by Boris Johnson stumbled from one poor decision to another scandal, Nicola Sturgeon’s messaging from the Scottish parliament at Holyrood was clear, to the point and confident. Interestingly, Westminster and Holyrood did not differ that much at all in their policies to curb the spread of COVID-19, but the optics were vastly different for the two leaders. In the meantime, calls for a renewed referendum on Scottish independence are growing louder, fuelled by the UK changing the terms of the agreement only two years after Scotland had voted “no” in the 2014 referendum. Many Scots who were on the fence in 2014 were swayed to vote against independence by the prospect of automatically leaving the EU when leaving the UK. In the upcoming Scottish elections in May 2021 pro-independence parties are set to narrowly achieve an absolute majority in parliament even though the electoral system is set up to prevent any one party from achieving a majority. Interesting times indeed.
As a matter of fact, I was originally going to write about something else altogether. But in mid-March, two things happened in the UK prompting me to reconsider. The first was the by now widely known murder of Sarah Everard by an off-duty police officer in London, sending shockwaves across the country. For present purposes however, all the more telling than just that, was the Metropolitan Police’s violent repression of a vigil organised primarily in memory of Sarah Everard, but also served to highlight the fact that for many women across the UK, this horrific murder was an extreme outcome of a general feeling of unsafety when walking the streets alone at night, rather than an exception in an otherwise safe environment. The police’s ham-fisted response, made worse by the fact that the suspected murderer was himself a police officer, brought to the fore a second issue: the ‘Police, Crime, Sentencing and Courts Bill’, which received its second reading in the House of Commons just days before the vigil.
The passage in question proposes to impose a maximum ten-year prison sentence on protests causing, among other things, “serious annoyance” or “public nuisance”.
The bill itself is a massive piece of legislation of almost three hundred pages, but one passage in particular prompted widespread outrage. The passage in question proposes to impose a maximum ten-year prison sentence on protests causing, among other things, “serious annoyance” or “public nuisance.”1 The prison sentence itself is made extra painful in the current circumstances due to the fact that it imposes a higher punishment for annoying protest than is given for many cases of sexual assault. Widely interpreted as aiming to stifle protest by reducing demonstrations to “whispering in the corner,”2 once publicly known the bill provoked immediate outrage and protests under the moniker of “Kill the Bill.” One of these protests stands out from the rest. On Sunday, 21 March, a protest in Bristol turned violent in circumstances that remained heavily debated a week later – did the police try to violently disperse protesters who were, admittedly, in breach of COVID-19 restrictions but nonetheless protesting for legitimate reasons, or was this nothing more than an ordinary violent riot?
Commentators and politicians on all sides rushed to assert the latter. While it is certainly possible to be opposed to this bill, the general consensus appeared to be that showing one’s opposition in this way ironically reinforces the need for such restrictions on protests. Such superficial denunciations, I think, do little more than rehashing the tired old assumption that any use of violence delegitimises protest from the outset. It is especially egregious, if not entirely surprising, coming from politicians such as Darren Jones, a Labour MP for Bristol, who took to Twitter during the protests to denounce the protest-turned-violent as “criminal behaviour.” Such comments are unsurprising because they come from an MP whose party is officially the largest opposition party in Westminster, but which has also consistently refused to mount any meaningful opposition to the leading Conservative Party over the past months. Indeed, before massive public pressure propelled the Labour Party into some kind of action, Labour was not even going to vote against the bill, opting instead to abstain. This highlights the irony of an opposition party supposedly lecturing protestors on how to protest, while themselves simultaneously abstaining from any meaningful opposition to the bill that was being protested against. In the face of ordinary representative, parliamentary means of opposition lacking clear direction, and opposition MPs denouncing sometimes violent protest as being most assuredly not the way to oppose the bill, all this raises the question: if not this way, then how?
A brief history of riots
Quite apart from the British opposition’s apparent inertia, I believe the current situation raises two interrelated questions about violence. The first should be obvious: what do we understand by the term “violence” anyway? A well-considered definition (that may or may not remain open-ended) matters because superficially reducing violence only to its direct physical manifestation obscures a number of interrelated issues. In the philosophical literature on civil disobedience, for instance, it has often been argued that demanding non-violence from communities protesting against violence structurally inflicted upon them is misguided at best.3 This leads to the second question: what is violence useful for? I mean “useful” here not so much as what ends it might realise for those employing violence, but rather what the rhetorical use of violence and related concepts (such as, in this context, rioting) is, especially for those seeking to defend the state against sustained opposition.
Let us begin trying to look at the last question by slightly shifting our focus, from violence to riots. This move is argumentatively justified for at least two reasons. First, without providing full-fledged definitions of either violence, riots, or protests, it seems intuitive to posit violence as that which distinguishes protests (non-violent) from riots (violent). This is not to deny that protests may also be violent, but tentatively there seems to be a normative preference for non-violence in the case of protests, and additionally, it is hard to see what a non-violent riot would look like. Second, even if this tentative distinction turns out to be philosophically untenable, it is politically ubiquitous. Violence seems to be the obvious term used to distinguish a protest from a riot in public discourse and political rhetoric. This means that as philosophers we may disagree with such haphazard use of terms, but we will nevertheless have to grapple with the fact that political practice is sometimes more obstinate than our neat theories can accommodate.
In his recent work on the conceptual history of riots, Jonathan Havercroft highlights two pivotal moments in British legal history.4 The first is the introduction of the Riot Act in 1714. This is the first time “riots” enter the British legal vocabulary and, perhaps even more interestingly, the first time they receive an explicitly negative evaluation. Prior to the 18th century the term “riot” was used mostly in a normatively neutral way, much like “protest” is today. Most notably, the Riot Act involves the authority of local police to order a crowd to disperse, it guarantees the right to indemnification on the part of the authorities, and it criminalises presence at a gathering that has been declared a riot. In a recent talk given at a critical roundtable discussion at the University of Edinburgh, Havercroft suggested that the Riot Act had the inconspicuous but probably not unintended consequence of permitting modes of political action common among the middle classes, such as circulating pamphlets and organising debates, while criminalising typical working-class modes of protest.5 This suggests an important use of the term “riots,” which may indeed extend to violence: employing such terms allows authorities to distinguish between forms of protest it deems legitimate or acceptable and those it rejects. Additionally, as this implication suggests, it extends to subjectivities: whether intentionally or not, such distinctions effectively permit some political agents to engage in political protest while barring others.
While the Riot Act was repealed in 1967, its legacy lives on. The Act gave public officials, most notably police superintendents, significant power of judgement: it was for them to determine when an act of protest was to be deemed a riot and if protestors were to be demanded to disperse. This point has attained such importance that even today “reading the Riot Act” remains in use in the UK as a catchphrase referring to authorities’ dispersal orders or more generally as an admonishment of imminent consequences for one’s actions.
In my own current home of Scotland, one city in particular is associated with vigorous political protest in which the Riot Act was involved.6 The almost legendary 1919 Battle of George Square in Glasgow began when tens of thousands of striking labourers gathered outside the Glasgow city council, expecting a response to their demands for shorter working weeks from the authorities. Out of the blue, union leader William Gallagher recalls, police attacked the rear of the crowd.7 After several members of the crowd went on the offensive, the police decided to read the Riot Act (a term which is, as noted, used symbolically today but which was used literally then) but in a mildly hilarious turn of events saw the paper which was being read out ripped from the sheriff’s hands before he could finish reading the Act. Having failed to read the Riot Act as a means to legally invoke martial law so as to be able to put a definitive halt to the protests, the authorities saw little other options but to call in the military.8
The Riot Act constitutes, in other words, tacit admittance of the fact that there is no natural normative distinction between protests and riots.
The Battle of George Square lives on in today’s collective imagination. Some of this depends on its historical context. Little more than a year after the October Revolution swept through Russia, fear of a Bolshevik uprising in Glasgow was one element of what prompted the British state into such swift repression of the labour strike. The Battle also consolidated Glasgow’s status as one of Britain’s major leftist strongholds, so much so that it earned the Greater Glasgow area the nickname of “Red Clydeside.” It also features prominently, almost mythically, in Alasdair Gray’s magnificent Lanark, probably the greatest Scottish novel of the 20th century.
Apart from these features, however, the series of events occurring on January 31st, 1919, in Glasgow serve to illustrate a number of important points about the Riot Act and its use. Declaring a protest to be a riot has the twofold consequence of permitting police to use force to disperse protesters, described by one of the union leaders as simply invoking martial law, and of rhetorically delegitimising the ongoing protest as nothing more than a violent riot. The major caveat is that the Riot Act legally requires the Act itself to be read to protesters, so as to ascertain their awareness of having engaged in a riot and the criminalisation of their presence. Failing to read the Act because the paper was ripped from the sheriff’s hands, the military was called in to repress the protest. Now, the single most important point about the Riot Act including the necessity of a protest being declared a riot and protestors being informed of that declaration, is just that: it declares a riot. The Riot Act constitutes, in other words, tacit admittance of the fact that there is no natural normative distinction between protests and riots, but that it is the authorities’ prerogative to draw this distinction as they see fit.
A notable feature of the 1714 Riot Act is its omission of explicit and sustained references to violence. Indeed, violence only became a criterion in the 1986 Public Order Act, introduced about twenty years after the Riot Act’s repeal. Section 1(1) of the Public Order Act defines “riot” as taking place “where 12 or more persons who are present together use or threaten unlawful violence for a common purpose” (emphasis added).9 Again, a brief mention of historical context is in order. The Act was introduced during the government led by Margaret Thatcher, the appreciation of whom is probably best explained by highlighting that, in Glasgow, her death was celebrated on George Square. For two years prior to the Act’s introduction, Thatcher’s government had been involved in a bitter and protracted struggle with Britain’s trade unions, most notably exemplified by the 1984 Battle of Orgreave. Combined with Thatcher’s known desire to curb the power of Britain’s trade unions, it seems obvious that stifling protests and strikes seems to have at least played a significant role in the introduction of the Public Order Act. More importantly, however, its explicit mention of violence in defining riots indicates the codification into law of what has long been a popular assumption: the principle by which to distinguish riots from protests is violence, and ipso facto protests may be legitimate means while riots are not.
Whose violence is this, anyway?
Let us return to asking what violence is in the first place. Thus far I have been conventionally using the superficial but commonly employed definition of violence as physical force. But is that all? In one of his most famous essays, Walter Benjamin suggests that it is certainly not. Now, Benjamin’s 1921 Critique of Violence is a rich text that I cannot possibly do justice to in its entirety here, so I want to specifically highlight Benjamin’s discussion of law-positing violence and law-preserving violence. The distinction, at first glimpse, is a simple one: law-positing violence employs violence as a means to the end of creating law, whereas law-preserving violence uses it to preserve already existing law.10
Before proceeding, a few interpretive notes may be in order. First, I take Benjamin to mean Law with a capital L here. Rather than the simple codification of certain rules, however fundamental or mundane, into legality, I believe law-positing violence is meant to designate the more fundamental kind of activity that is involved in the establishment of an entire order and structure of authority.11 It is important to highlight that no function exercising political authority randomly occurs in the wild, but is instead always constructed and given formal standing by virtue of its being given authority by law.
Benjamin’s use of the term “violence” signifies more than the simple cliché that, in the case of law-preserving violence, the state uses its monopoly of violence to enforce the law or, in the case of law-positing violence, that the construction of an entire political order often, if not always, involves some degree of violence. It rather suggests that Benjamin has something else in mind when using the term “violence”; something more than just physical force. Just how far Benjamin extends his notion of violence becomes clearest, I think, in his discussion of contracts. Even contracts, Benjamin writes, involve some degree or at least threat of violence. If no such threat were available, the terms of the contract could not be enforced should one of the signatories fail to uphold them, and there would be little use in distinguishing contracts from a simple agreement among two people.12
The concrete upshot of this is that violence is in need of legitimation and is, by definition, vulnerable to critique.
How, then, does Benjamin define violence? He does not provide a clearly demarcated definition, instead leaving it dispersed throughout the text, but Daniel Loick aptly suggests that Benjamin deploys the term “violence” “in the precise sense of the word as an intervention in ethical life.”13 Two points are key to understanding this usage of the word violence. First of all, it proves again that translations may hamper understanding in philosophy. Whereas the English “violence” in its commonplace usage is taken to exclusively refer to physical force, in Benjamin’s text it is a translation of the German “Gewalt,” which includes physical force but also extends to authority. The German word “Staatsgewalt,” for example, means so much as “state authority.” Second, and more importantly, what Benjamin is doing here essentially amounts to a denaturalisation of violence. Rather than a natural phenomenon, Benjamin’s suggestion seems to be that violence is artificial. The concrete upshot of this is that violence is in need of legitimation and is, by definition, vulnerable to critique.
In his reading of Benjamin’s Critique of Violence, Jacques Derrida takes this point a step further than Benjamin himself seems to have done. Natural violence or violence of nature, Derrida writes, does not exist.14 We may speak metaphorically of an earthquake being violent, but this remains solely a figure of speech because as a natural phenomenon an earthquake cannot violate anything. It has no normative standing. If natural phenomena have no normative standing because they simply “are,” violence on the other hand falls squarely in the domains of law, morals, and politics. For the present, this has two important implications. First, violence is in need of justification, which conversely means any ostensibly existing justification can be contested. Second, violence is ubiquitous as a matter of fact but not as a matter of necessity.
Before continuing along those lines of thought, let us pay a little closer attention to the distinction Benjamin draws between law-positing violence and law-preserving violence. This distinction is, Benjamin hastens to add, neither clear-cut nor exhaustive. He spends most time discussing law-preserving violence. In fact, Benjamin points out, the main instrument of law-preserving violence, the police, is notoriously enmeshed with law-positing violence. Ostensibly existing just to enforce law that has been legitimised by other means, the police in fact frequently intervenes in places where the legal facts are not immediately clear. Indeed, the function of the police, according to Benjamin, is not necessarily just to promulgate existing laws, but also “the assertion of legal claims for any decree.”15 To complete the circle, in his reading of Benjamin, Derrida also highlights the fact that, on the obverse side, law-preserving violence is always already implied in law-positing violence. This is so for the quite simple reason that nobody would think of positing law without seeking to subsequently preserve that law and lend it some degree of permanence. While useful as philosophical distinctions, the reality of the interplay between law-positing and law-preserving violence suggests that in practice these two elements are always enmeshed.
Derrida also highlights the fact that, on the obverse side, law-preserving violence is always already implied in law-posing violence
Now let us return to the UK. One might be sceptical about the claim that the police engages in some form of law-making. Admittedly, the police may wield substantial power, but it is not clear that it makes law in the same way that a parliamentary process involving the House of Commons and the House of Lords does. The key point to note here is that such officially promulgated laws may leave substantial discretion to whoever is tasked with enforcing the law to decide what element of the law exactly applies. And that responsibility normally falls on the police.
There are few instances where this is clearer than the aforementioned 1714 Riot Act. Recall that the Riot Act included a caveat that required some gathering to actively be declared a riot and for this declaration to be promulgated to all those present. What the Act then does is to carve out a rather wide space of interpretation left at the police’s discretion to determine whether something is a riot or a protest. If law at its most elementary level is a line used to distinguish the legal from the illegal and the Riot Act quite clearly empowers the police to draw that line, what it effectively enables is for the police to draw the distinction between legal and illegal as it sees fit.
Now, some level of discretion may be necessary or even inevitable. I would like to leave that question to one side here. More importantly, although designating the line between legal and illegal and the positing as well as preservation of that line as violent need not suggest a straightforward equivocation with physical violence, it does cast new light on the use of violence in a rhetorical sense to delegitimise protests or riots. If on a theoretical level both a protest and the police or both a riot and the law may be violent, it seems that it is no longer so easy to delegitimise riots simply because there is violence involved. To point out that there was violence in that case would simply be to state the obvious. This does not necessarily mean that if many things are violent then anything goes, but it does urge reconsideration of the legitimacy of the use of violence.
If we accept that violence is perhaps more widespread than denunciations of riots as violent may have us believe, I think that there are two possible ways forward. One is to try and conceptualise a way of coexisting that is totally bereft of violence. Daniel Loick suggests that this would have been Benjamin’s favoured pursuit.16 Alternatively, we can bite the bullet and approach violence analogously to how Rousseau approached unfreedom. “Man was born free, yet everywhere he is in chains,” Rousseau famously begins his Social Contract.17 He immediately suggests that his aims are rather modest, though: what Rousseau cannot do, he admits, is try to eliminate all unfreedom. What he can do, however, is see how we can make it legitimate. In the remainder of this essay, I would like to explore this last option, and highlight one specific way in which it comes to the fore in the recent protests in Bristol and London, and their interactions with the proposed bill.
Democratic violence: a contradiction?
Obviously, I could not expound an entire theory of legitimacy here. But let us look at some theories which are commonly referred to. Take legal positivism, for instance, an important view in legal philosophy. Legal positivists hold that laws are valid insofar as they have been made in accordance with previously existing higher-order laws which specify in what manner and by whom laws can be made. If all appropriate procedures have been followed (by the appropriate people), then, a law is legitimate. Clearly, one of the most important tenets of legal positivism is the strict separation of “law as it is from law as it ought to be.”18 A further point to note is that the validity of laws depends on whether higher laws empowering some officials to make law have been followed. Recognising that this eventually leads to an infinite regress, the influential Austrian legal philosopher Hans Kelsen stressed that at the end of such chain there must always be a basic norm or a Grundnorm.19 Since this Grundnorm could not have been authorised by a higher law, it can only be presupposed. This is simply necessitated by legal positivism’s own methodological commitments: if laws can only be legitimate by virtue of other laws, obviously there must be some beginning which it technically cannot explain.
Now, Hans Kelsen’s theory of the Grundnorm, introduced in his influential Pure Theory of Law, has been interpreted in various ways. One might wonder, for example, what non-legal facts lead to some version of a Grundnorm being accepted. That need not concern us here. What is more important presently is to have a look at how this reflects on the 2021 policing Bill in the UK. Clearly, if we follow Kelsen – or legal positivism more generally – this law is perfectly valid. There is no immediate legal ground that can be used to object to the validity of the bill. Hence, one might argue that it ought to be accepted. However, I suspect that this conclusion will be unsettling to anyone seriously committed to democracy. It is to me, in any case, and I think it should be to you, too.
Maybe there is something more at play. Of course, the positivist will allow that we may have a wide variety of reasons for preferring one particular law over another, regardless of the fact that both laws, if enacted in the proper way, could be valid. Yet, since these are not strictly speaking legal problems, but rather political or ethical ones, a positivist might maintain, these are simply matters for others to address. Regardless of what one thinks of positivism as a legal philosophy, one point seems clear: laws abhor a vacuum. By focusing on laws and only laws, legal positivists intentionally leave out an important part of the picture and consider laws only in a vacuum. But there is more to the existence of laws than just the concept of legality alone. So legal positivism, as a theory of legitimacy, cannot offer much help here.
But there is more to the existence of laws than just the concept of legality alone. So legal positivism, as a theory of legitimacy, cannot offer much help here.
We need to broaden our scope. As I said that simply accepting the validity of the bill as a done deal should make anyone committed to democracy uneasy, let us have a quick look at democratic theory. Let me begin by stressing one point in particular: democracy is more than voting periodically. This may be akin to stating the obvious, but it is nonetheless important to emphasise because it opens the door to the next question: if democracy consists of more than voting, then what is democracy, anyway? Obviously, this question has about as many possible responses as there have been political philosophers. Here I want to highlight two points made by two different political philosophers.
The first concerns what Jacques Rancière calls the “factuality” of democracy.20 What Rancière means by this is that democracy consists in an effort of equalisation or a breaking of hierarchies – and I am undoubtedly not doing his philosophy justice here – by demonstrating that such hierarchies were baseless to begin with. Rancière is what one might call an “ontological anarchist.”21 This does not necessarily mean that he believes that, normatively, no hierarchies or rule of one person over another should exist. There are, in fact, reasons to interpret Rancière as saying that hierarchies are inevitable even if not philosophically justifiable. But the important point is that they are groundless. There is no metaphysical or natural fact that might underpin one person’s rule over another. The irony, Rancière thinks, is that the technical impossibility of legitimacy is demonstrated by political philosophy’s entire history of trying to devise theories of legitimacy. Any attempt at legitimising some situation betrays its artificiality.22 Similarly to how, as we saw above, an earthquake could not violate anything, trying to see how such a natural phenomenon could be legitimised obviously seems like a senseless endeavour. The mere fact that political philosophy has almost always tried to legitimise hierarchies, therefore, reveals the artificiality of these hierarchies.
If democracy consists in horizontalising social relations, as Rancière’s idea of the factuality of democracy seems to imply, the current protests bill seems to go in the exact opposite direction. In the end, a thin veneer of democracy is maintained by formally allowing the right to protest, but with the major caveat that stringent limits have been set on the extent to which such protest can be disruptive. Remarkably, Rancière writes elsewhere that strictly speaking the police’s main activity is not to interrogate and arrest but to obscure. Police activity consists not in interrogating protestors about their intentions, but in convincing the public to move along because “there is nothing to see here.”23 Criminalising protest which causes serious annoyance or public nuisance ensures from the outset that there never will be anything worth seeing here.
The reason why such horizontalisation is important brings me to the second political philosopher I wanted to highlight. Claude Lefort seems to agree with Rancière at least on a metaphysical level: they both stress the important groundlessness of social relations. Their respective emphases are slightly different, though. Whereas for Rancière this groundlessness was the reason for a rigorous critiquing of hierarchies and philosophy’s complicity in maintaining them, Lefort turns the absence of a determinate ground into something more positive. Indeed, for Lefort groundlessness is the entire point of democracy. Seemingly paradoxically, groundlessness is the ground.24 What does that mean? As with Rancière, I cannot do justice to Lefort’s entire theory of democracy here, but I think the key point to grasp his view is the following. If no fixed and determinate ground to anchor the legitimacy of some regime exists, then this legitimacy can only be upheld by stressing the “legitimacy of a debate as to what is legitimate and what is illegitimate.” That is, if no fixed foundations are available, we must constantly be engaged in constructing and justifying such foundations anew. This activity itself is the ground on which democracy rests.
Effectively, for Lefort, a democratic society is one devoid of predetermination. This rules out predetermining a set of policies, yes, but also predetermining who is to have their voice heard in contesting policies and general structures of legitimation, and how such contestation is carried out. Instead, democracy is characterised by “a question […] being posed and […] an answer being sought”25 while acknowledging the impossibility of ever finding a definitive answer for lack of an ultimate referent. Hence the necessity to question rather than to reaffirm the legitimacy of a law that is, technically speaking, a valid one.
That brings us back to the ‘Police, Crime, Sentencing and Courts Bill.’ Note first of all that Lefort’s emphasis on the permanence of a societal debate as to what is legitimate and what is not, suggests that this debate cannot suddenly be shut down once some (proposed) bill or law has passed the appropriate institutional thresholds. In turn, this suggests that this debate should clearly be carried out in official institutions, such as the House of Commons, but certainly also outwith formalised channels.
Here, then, is the problem: by fixing the terms in which this debate can be carried out in advance, the new bill stifles that debate from the outset. In so doing it effectively undermines one of the pillars of democracy altogether. It does so not only by severely limiting the ways in which political challenges can be raised, although that remains a crucial part of just how problematic this bill is: contestation that is reduced to an inaudible whisper is really no contestation at all. But just as problematic are its specific references to the content or the aims of protests. The bill involves, for example, several specific references to statues. This is of course unsurprising given the debate that flared up about honouring colonisers, slave owners, war criminals, and other historical figures of dubitable repute, as well as the fate of the statue of Edward Colston in Bristol in 2020. This fact alone led many women to take to Twitter and other social media to suggest that maybe they should henceforth pretend to be statues; that at least would seem to offer them more substantial protection from the police than they currently get. In terms of Lefort’s view of democracy, the inclusion of specific modes as well as targets of protests is illustrative of the explicit anti-democratic tendencies of this bill: the most effective modes of protest are stifled, and, even within these modes, some targets of protests are still ruled out from the start.
Philosophically, the problems raised by the introduction of this bill confirm the earlier point that democracy cannot and should not be limited to its particular parliamentary or institutional expressions.
Philosophically, the problems raised by the introduction of this bill confirm the earlier point that democracy cannot and should not be limited to its particular parliamentary or institutional expressions. Politically, it underlines just how vitally important it is, especially in the face of such limitations being introduced, to have an effective and active opposition within as well as outwith regular institutional channels. The bill should thus not only be a warning to the ruling Conservative Party but also function as a wake-up call to Labour. Although it is true that some individual Labour MPs, such as David Lammy, did strongly oppose the bill, there is some irony in that perhaps the most cohesive and sustained opposition is coming from the SNP – themselves the ruling rather than the opposition party in Scotland’s parliament at Holyrood. If, in any case, Labour is committed to Britain’s democracy, this bill has reinforced the need for that party to seriously step up its game.
Finally, let us return to violence and to riots. Jonathan Havercroft, whose work I discussed earlier in this paper, deduces three loose criteria we might deploy to see to what extent rioting, including the use of violence, might be considered a legitimate means of political action. These principles ask (1) whether some fundamentally unjust state-action or -law is targeted; (2) whether the state uses riot law to disperse peaceful and otherwise legitimate protest; and (3) whether extra-parliamentary action is necessary in view of the inefficaciousness of doing politics through the regular channels.26
Of course, all these are contestable. One might rightly wonder whether the third, for example, does not unduly require potential protestors or indeed rioters to first exhaust all other means of addressing some political issue. Still, one thing these principles do point to is that anything dubbed a riot should not by that very fact be delegitimised immediately. Obviously, regarding the first, there will be substantial disagreement over what exactly constitutes “fundamentally unjust” state-action. But on a less strict reading of this principle, all it requires is for political riots and those who engage in them to also justify their actions: there is a difference between a riot following a football match and one that results directly from opposition to state action.
Of the third criterion we might ask whether it does not unduly prioritise parliamentary politics over “democracy in the streets.” Even if it does, it seems the British political system is set up to fail in meeting the requirement of effectively addressing political problems and public grievances through its parliament. The “First Past the Post” system of voting means it is heavily biased in favour of absolute parliamentary majorities even if that party did not win an absolute majority of votes, meaning that the efficaciousness of parliamentary opposition is limited from the outset, even if the main opposition party were to make a serious attempt.
Conclusion: hierarchy in the UK
The brief survey of Rancière’s and Lefort’s theories of democracy suggests at the very least – and this is a modest proposal – one criterion by which to judge such laws as the new Policing Bill in the UK: a balance of violence. If we accept that some degree of violence is inevitable – and we need not accept this, but for the moment let us do so – it needs to be balanced. This means that the state permits a degree of anarchical or rather democratic activity in the sense that no hierarchical ordering of what kind of politics is permissible is superimposed from the outset. Regardless of whether a proper balance of this kind existed in the UK before, the bill currently under discussion clearly throws any remaining balance out the door. Far from permitting a permanent questioning of political legitimacy based on what I called ontological anarchy before, this bill suggests that the current UK government has a clear idea of hierarchy in the UK.
Apart from protests, the current British government’s attitude towards democracy will be fateful, if interesting, for the future of Scotland as well. With Scottish elections imminent and pro-independence parties set to win a majority, Westminster will be hard-pressed to find convincing reasons to deny increasingly loud calls for a new referendum on Scottish independence. The bill, as has its rhetoric on Scotland over the past years, suggests that to Westminster the issue is clear: a referendum was held in 2014, and it is the UK government, not Scotland, who decides when another referendum might be held. Their current estimation is not anytime soon. Rather than “making room for the possible, for the new, [and] exposing itself to the unknown,”27 the UK government seem to have its future history written out, ready to superimpose on society. In that history, there is little room for bothersome “anarchy in the UK,” or any other seemingly democratic adventures.
The bulk of this piece was written in late March and early April. However, in the month since I finished writing, two things occurred in Scotland that deserve highlighting. The first is, obviously, the Scottish parliamentary elections on May 6th, in which pro-independence parties increased their majority to 72 seats (out of 129).
The second happened exactly as the newly elected parliament was being sworn in. I mentioned Glasgow before. Around nine o’clock in the morning on Thursday, May 13th, a van belonging to the UK Home Office’s immigration enforcement service arrived in Kenmure Street in the Pollokshields area of Glasgow. For context, together with neighbouring Pollok, Pollokshields is probably the single most diverse neighbourhood in all of Scotland. It is also part of recently re-elected First Minister Nicola Sturgeon’s constituency. It is also important to mention that immigration is currently fully reserved to London, despite calls from Edinburgh for greater devolution on immigration. Finally, resistance against immigration enforcement has a prominent part in Glasgow’s history: in 2005, seven young women, all attending high school at the time, began an influential and ultimately successful campaign to resist the infamous dawn raids in response to classmates’ homes being raided at dawn and families being deported. They became known as the Glasgow Girls.
A standoff followed, in which an increasing number of people living in the area joined to protest the deportation. “These are our neighbours, let them go,” they chanted.
Sixteen years on, raids aiming at deportation have not stopped. So it was on May 13th. Officers from the UK Home Office detained two men, known now to be of Indian Sikh origin, so as to have them deported from the UK. But before their van could depart, it had been surrounded by neighbours. A standoff followed, in which an increasing number of people living in the area joined to protest the deportation. “These are our neighbours, let them go,” they chanted. Towards the evening, after an almost seven-hour standoff, the men were released. In the meantime, support for the protesting neighbours had poured in from prominent Scottish politicians, amid conspicuous silence from Westminster. A day later, Scottish Justice Minister Humza Yousaf renewed the call for immigration to be devolved to the Scottish Parliament. Meanwhile, the UK Home Office put out a statement in which they denounced the “mob” protesting the deportation of their neighbours. Attempting to delegitimise a protest by calling protestors a “mob”; sound familiar?
Now, there are many possible takeaways from this series of events. Here, I want to quickly highlight just one. One of the most fundamental questions of any politics is that of who the political community is. More explicitly democratic, one of the most fundamental questions is that of who gets to decide that. As I highlighted in the original piece, the 1714 Riot Act specifically engaged in hierarchically answering that question by criminalising modes of political action specific to particular groups. The attempted deportation on May 13th – an “intervention in ethical life” if there ever was one – similarly followed from a specific view of who the political community was. But this time the community itself, in the most direct sense of neighbours of those being deported, resisted: not the UK Home Office decides who their community is, but the community itself. If violence concerns among other things interventions in ethical life, and if democratic politics is above all about who is entitled to engage in such interventions, on May 13th Glasgow Pollokshields at least asserted this: to intervene in the ethical lives of our neighbours is to intervene in the ethical life of the entire community. And if that is so, then it is in the first instance we, the community, who get to have a say on who we are as a community.
- Home Office, ‘Police, Crime, Sentencing and Courts Bill’, n.d., https://publications.parliament.uk/pa/bills/cbill/58-01/0268/200268.pdf. ↵
- Kenan Malik, ‘If You Thought the Right to Protest Was Inalienable, Then Think Again’, The Guardian, 14 March 2021, http://www.theguardian.com/commentisfree/2021/mar/14/if-you-thought-the-right-to-protest-was-inalienable-then-think-again. ↵
- Erin R Pineda, ‘Civil Disobedience, and What Else? Making Space for Uncivil Forms of Resistance’, European Journal of Political Theory, 25 April 2019, 147488511984506, https://doi.org/10.1177/1474885119845063; Robin Celikates, ‘Rethinking Civil Disobedience as a Practice of Contestation-Beyond the Liberal Paradigm’, Constellations 23, no. 1 (March 2016): 37–45, https://doi.org/10.1111/1467-8675.12216. ↵
- Jonathan Havercroft, ‘Why Is There No Just Riot Theory?’, British Journal of Political Science, 16 February 2021, 1–15, https://doi.org/10.1017/S000712342000085X. ↵
- A recording of the full discussion, which took place on 24 March 2021, is available at https://critique.sps.ed.ac.uk/critique-exchange-civil-disobedience-and-its-critics/. ↵
- The Bill introduced in 2021 does not formally apply to Scotland because policing is a devolved power, and Scottish Justice Minister Humza Yousaf has already stressed that the Scottish government has no intentions of introducing a similar Bill in Scotland. Devolution has existed formally since 1998, and practically since 1999. ↵
- William Gallacher, Revolt on the Clyde: An Autobiography (Agra, India: Socialist Literature Publishing Company, 1936), 195. ↵
- Robin McKie, ‘100 Years on: The Day They Read the Riot Act as Chaos Engulfed Glasgow’, The Guardian, 6 January 2019, http://www.theguardian.com/uk-news/2019/jan/06/100-years-on-the-day-they-read-the-riot-act-in-glasgow. ↵
- UK Government, ‘Public Order Act 1986’ (1986), Part I, Section I. https://www.legislation.gov.uk/ukpga/1986/64/contents. ↵
- Walter Benjamin, ‘Critique of Violence’, in Reflections: Essays, Aphorisms, Autobiographical Writings (New York: Schocken Books, 1978), 287. ↵
- Daniel Loick reads Benjamin similarly, see Daniel Loick, A Critique of Sovereignty, trans. Amanda DeMarco (London: Rowman & Littlefield, 2019), 133. ↵
- Benjamin, ‘Critique of Violence’, 288. ↵
- Loick, A Critique of Sovereignty, 119. ↵
- Jacques Derrida, ‘Force of Law: The “Mystical Foundation of Authority”’, in Deconstruction and the Possibility of Justice, ed. Drucilla Cornell, Michel Rosenfeld, and David Gray Carlson (New York & London: Routledge, 1992), 31. ↵
- Benjamin, ‘Critique of Violence’, 287. ↵
- Loick, A Critique of Sovereignty, 121–22. ↵
- Jean-Jacques Rousseau, ‘On the Social Contract’, in Discourse on Political Economy and The Social Contract, trans. Christopher Betts (Oxford: Oxford University Press, 1994), Book I, Chapter i. ↵
- H L A Hart, ‘Positivism and the Separation of Law and Morals’, Harvard Law Review 71, no. 4 (1958): 594. ↵
- Hans Kelsen, Pure Theory of Law, trans. Max Knight (Berkeley and Los Angeles: University of California Press, 1967). ↵
- Jacques Rancière, On the Shores of Politics (London: Verso, 1995), 94. ↵
- Miguel Vatter, ‘The Political Thought of Jacques Ranciere: Creating Equality’, Notre Dame Philosophical Reviews, 2009, https://ndpr.nd.edu/reviews/the-political-thought-of-jacques-ranci
- Jacques Rancière, Hatred of Democracy, trans. Steve Corcoran (London: Verso, 2014), 48. ↵
- Jacques Rancière, ‘Ten Theses on Politics’, in Dissensus: On Politics and Aesthetics, trans. Steven Corcoran (London: Bloomsbury, 2010), 45. ↵
- Claude Lefort, The Political Forms of Modern Society: Bureaucracy, Democracy, Totalitarianism, ed. John B. Thompson (Cambridge: Polity Press, 1986), 309. ↵
- Claude Lefort, Writing: The Political Test, trans. David Ames Curtis (Durham and London: Duke University Press, 2000), 269. ↵
- Havercroft, ‘Why Is There No Just Riot Theory?’, 5–12. ↵
- Lefort, Writing: The Political Test, 262. ↵