Protest, Property and the Commons

Performances of Law and Resistance

Lucy Finchett-Maddock

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781136004728
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

Protest, Property and the Commons focuses on the alternative property narratives of 'social centres', or political squats, and how the spaces and their communities create their own – resistant – form of law. Drawing on critical legal theory, legal pluralism, legal geography, poststructuralism and new materialism, the book considers how protest movements both use state law and create new, more informal, legalities in order to forge a practice of resistance. Invaluable for anyone working within the area of informal property in land, commons, protest and adverse possession, this book offers a ground-breaking account of the integral role of time, space and performance in the instituting processes of law and resistance.

Chapter 1
Resistance to law to resistance

The dialectic of disguise and surveillance that pervades relations between the weak and the strong will help us […] to understand the cultural patterns of domination and subordination.

Scott J. (1990), Domination and the Arts of Resistance: Hidden Transcripts, p 4

This first chapter seeks to unpack some of the central questions relating to the ambiguous relationship between law and resistance. By seeking to understand this relation we are not only on the path to figuring the extent to which resistance influences state law, but we might learn also of other forms of organisation or laws which this inspection of legality and protest will uncover through analysing the processes and occurrences between the two. Looking in to how resistance becomes law, the role of institutionalisation can also indicate how private property ultimately shapes the distinction between legality on the one hand and protest on the other, and in fact creates a shifting division between the two. It is not the first time an investigation similar to this has sought to understand the source of our codes and regulations and nor will it be the last; acknowledging the central place that law has within the organisation of each society and our varying understandings of its beginnings and processes through which it comes to pass. This work follows a chronology of philosophical investigation emanating as far back as the Athenian state with the question of the origin of the polis; further through into the Enlightenment era where political philosophers such as Rousseau (1998 [1762]) and Locke (2010 [1689]) sought to understand the origin of the state and the role of law within state formation. This tradition has been continued in the work of legal scholars such as Carl Schmitt (1950, 2006, 2008), Giorgio Agamben, (1998, 2005, 2007, 2009), Antonio Negri (1999, 2004, 2005), critical philosophers Jacques Derrida (1987, 1990), Walter Benjamin (1978, 1999b), critical legal writers of recent years, such as Costas Douzinas (2005, 2014b), Peter Fitzpatrick (Fitzpatrick and Golder, 2008), Oscar Guardiola-Rivera (2009, 2012) as well as legal pluralists such as Boaventura de Sousa Santos (1999, 2004; Santos and Rodríguez-Garavito, 2005), to name but a few. These thinkers’ works shape and solder my own, specifically in a shared but altered quest to explain the role of law in resistance, and vice versa.

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The initial step is to consider what each of the concepts of law and resistance are, and what they mean. What is in fact law itself, and what is resistance? By looking at some of the conceptions of what law and resistance may be, or at least how we can use these referents within this text, the similarities and differences between the two poles (if they are such) can be considered. Are there elements of resistance in law and equally the other way around; is there a form of law that lives within resistance?

It is at this juncture that the discussion can divide between a) conferring a presence of state law within resistance; and b) describing resistance’s capacity to create new or non-state law, or a law of resistance. This is necessary precisely because it is my conjecture that resistance both utilises forms of state law as tactics as well as forming its own type of law that may or may not be influenced by a typology of state legitimacy. What do I mean by a law of resistance? A law of resistance simply refers to the type of law that might exist outside of the positive law institution of the state. It is also a form of law that, like any form of democratic law, derives from consensus.

If resistance has the capability for legal innovation then what does this look like? We only have to look at some of the protest phenomena of recent years to see examples of resistance movements actually formulating codes and practices of their own. For instance, during the Occupy protests at the end of 2012, hand signals as part of assembly meetings became synonymous with the movement, an understood language used between participants in meetings whereby expressions of support or disagreement were articulated through physical actions. Whether this is a form of law or not we will come to, but there is a definite presence of calculated rules and procedures being utilised. This ironic use and creation of rules within movements that critique government structures is something I find intriguing and altogether more revealing of a wider correlation between law and resistance beyond Occupy.

Therefore, does a law of resistance always look like state law, or does it appear entirely different from any understanding of law that we might previously have, making it an alternate legality? Is there ever a point at which the juridical is free of resistance, or resistance is free of the juridical, meaning that even if resistance seeks to create its own legality, it may not always be shaped by state law? It is important and useful to consider these questions: the examples of protest that are discussed in this book are specifically argued as sites of legal innovation shaped by the presence of state law (in the enforcement and protection of individual, constitutional property rights),¹ and yet have the potency to create law that is alternate in its content to the law of the state.

Today we see an altered role of the state, one subsumed by a transformed era of capitalism where its core is contained by financial externalities whilst manipulated by the same market forces that use its legality to prefigure how we operate within society. We are observing and are part of a supreme age of capital in law, and yet as we will discuss, capital has always been state law’s ultimate authority, and we turn to Rousseau’s conceptions of capital through property and the social contract to relate this later in the book. Rousseau claims, ‘the demon of property infects everything it touches’ (1979 [1762]: 354). With this in mind, the state/ resistance relationship is not a duality, but one shaped and moulded from a range of peripheral dynamisms tangential and integral to the functioning of both resistance and state law simultaneously. The role of capital and mercantilism within state law is part of its historical structuring, heritage and instrumentality and this history will become clearer as state law’s past reveals itself in the now of property rights, its import upon and within alternate conceptions of property discussed as laws here. This non-duality is expressed straightaway in the presence of state institutionalisation’s reliance on private accumulation in order to exist, and furthermore within the configurations of resistance that we are surveying that seek to defy black and white normative dualisms. Simultaneously their existence relies upon the presence of private property in order to create what Soja would refer to as their ‘Third Space’ (1996). This agential nature of property emanates directly from landed realty and how that translates into the spatial and temporal divisions of law and resistance, whether material or otherwise. Time and space in law and resistance are dimensions that repeat the landed contingency of the two, whilst equally informing us of how understandings of property mould our conceptions of amplitude and duration in turn, revealing the archival character of law and resistance.

In order to understand how these rather abstract relations of legality can be explained, I argue that, first and foremost, resistance and law are contingent of one another, one does not appear prior to the other but there are always elements of resistance in law and law in resistance. This is reminiscent of Fitzpatrick and Golder’s account of law as resistance, whereby within the most juridical of acts there sits the potency of dissent itself (2008). State law happens as a result of institutionalisation, which is a linear progression of pre-institutional rules and procedures at grassroots level becoming reified, taking on an appearance of reality that simultaneously (more often than not) bring forth actual concrete institutions of state law. Institutionalisation can literally (in my view) refer to something informal experiencing a trajectory of being formalised, from the material construction of an acerbic glass-fronted government lobby, to the procedures of precedent and convention being gathered, directing the way in which our jurisprudence is sedimented.

Pre-institutionalised organisation, such as rules that have not been given the force of sanction through establishment, continue on to be subsumed into the law proper, or legitimated law. I say legitimated law as this legitimacy relies on it being valid in a twofold manner: representative of the people (the constitution) whilst at the same time owing its authority to the institutionalisation process itself, its characteristic as the state and the sovereign. The fact that state law moves in a linear (forward direction) trajectory reflects a specific progress-laden understanding of space and time which state law recalls, one that we will come to understand as opposed to the nonlinear characterised by resistance movements. The arrow of state law, much like the arrow of time that linear conceptions of temporality reflect, indicates capital’s inherent leverage, its concern for development and progression in a forward-facing projection and accumulation of wealth. This reminds us of the non-dual relation between law and resistance and the agential character private property has over the form of law that is instituted as a result. This conception of time and space is not the same for law and resistance prior to institutionalisation, as they are contingent of one another, and thus move in a nonlinear manner. The temporal and spatial pace (whether linear or nonlinear), at which resistance proceeds on to either a non-state resistant law or a state law, signifies the entrance of individual property rights.

I argue that any legal innovation occurring outside of state law is: a) not limited to being shaped by the influence of state law institutionalisation, but in most instances this does happen (see squatted social centres as examples); b) does not have to look like state law in order for it to be a form of law; c) all non-institutionalised law that is resulting from presence (pre-institutionalised consensus, collective or the people), is a law of resistance. Presence is thus the actions and practices of resistance that fulfil the goals of the actors themselves at a given juncture in space and time without institutionalisation, and not the actions and practices of representatives of those who give ‘legitimacy’ to the law. By allowing for presence and not re-presence, there is no need for institutionalisation in order to hold legitimacy; d) If there is ever to be an alternate understanding of social organisation recognising the possibilities of both representation and presentation, then there has to be an acceptance that there may be different constructs of legality with which positive law and its proponents are yet to be familiar.

With this in mind, the following pages will discuss law and resistance and what binds them and separates them, and how movement between the two enacts a process and product at the same time. The point at which resistance becomes law or a law of resistance becomes state law, refers to a specific juncture in both linear and nonlinear movements of law and resistance.

We will also discuss some plural legal conceptions of both state and non-state law, drawing on literature that considers forms of law existing outside of state structures, particularly useful in terms of a more democratic or grassroots legality in terms of a ‘law from below’, spoken of particularly by Boaventura de Sousa Santos, and how this might inform a conception of law of resistance. By locating alternate understandings of law, which do not have to be situated within the institute of the sovereign, we recognise its legitimacy as coming from the people, the present, from which the mechanisms of state law (reification, institutionalisation, a linear progression in time and the interjection of capital as individual property rights) keep us at a distance.

Resistance

Considering the fact that resistance is chosen here for discussion prior to law, there is an interesting twist to the etymology of resistance that hints to its reactive nature. According to the Oxford English Dictionary definition, an act of resistance, or ‘to resist’, is to ‘withstand action or effect of; try to prevent by action or argument; refrain from something (tempting); struggle against’ (2004: 1224). This is a verb of alternating conceptions, a composite of stopping, refusal, boundary-making, whilst at the same time denoting an active struggle, a fight, a denial, and at times, an incorporation or seduction from that which is being refrained. To resist appears to be both a restitutive and combative thing to do, as preventative mechanisms or past externalities infect the actions of an individual, a group or even a machine or system; or as a reaction to extant situations. On the same page of the Oxford English Dictionary, the noun resistance is listed as ‘the action of resisting; armed or violent opposition; impeding effects exerted by one thing over another; the ability to not be affected by something’. There is a line drawn by resistance against other outside forces that demarcates itself as an action or a movement in opposition to something. It is noteworthy to see that the general definitions refer to something existing externally or in co-dependence with something else, implying a re-action to something, an action that has to be repeated, or happens in response to the influence of something other than itself.

Howard Caygill in his recent ‘On Resistance’ (2013) speaks of resistance as a phenomena that is so far ‘strangely unanalysed’. It is perhaps not surprising there is an ignorance of the term as most resistances we are familiar with are linked to turbulent times and, more often than not, are of a violent imposition. Forceful resistance is exemplified as armed – against occupying forces and foreign domination. Examples range from the French and Jewish Resistances of the Second World War fighting Nazi occupation and atrocity, to perceived ‘freedom fighters’ or ‘terrorists’ such as HAMAS in the occupied Palestinian Territories and Hezbollah in Lebanon fighting Israeli hegemony; the Kashmiri Liberation Front fighting for independence for the garden state of Kashmir along the political flashpoint of the Indian and Pakistani border; to the Liberation Tigers of Tamil seeking Tamil secession from the rest of Sri Lanka. The far-left Red Army Faction (RAF) of the seventies were specifically remembered for their violent attacks and bombings of German political targets, and the bombings of the Irish Republican Party (IRA) on mainland Britain and loyalist targets in Northern Ireland became a way of life in the seventies and eighties in the United Kingdom and Ireland. From a more non-violent perspective, in recent years the ‘black bloc’ tactic has developed associated with the ‘Alter-Globalisation Movement’ but originating from the autonomists of the seventies and eighties, a form of resistance in response to Western hegemonic economic and social colonialism. The black bloc (specifically dressed in black and covering their faces with balaclavas, bandanas, masks and scarves) are less a specific group of people than an internationally understood tactic where each nonviolent anti-authoritarian demonstration and protest can call upon a cohort of individuals who are willing to express their discontent with the current political situation through damage to private property. Examples of this were rife in the 1999 Battle of Seattle, the May Day protests in London during the nineties, and even up to the Greek protests and the student protests of the Year of the Protestor in 2012.

Yet resistance is not always violent, creating an important distinction between those forms of opposition that use pacifist tactics to express their discontent, even in the face of forceful threats from state powers. The role of force within resistance speaks of a revolutionary tactic seeking to counter state legitimated power, whilst there are those movements that desire the same result but through pacifist means. A famous example of non-violent grassroots resistance is the ‘Zapatistas Revolutionary Army’ in Chiapas, Mexico who use demonstrations and occupations to fight for indigenous rights and dispossession of their local lands. Similarly, the anti-war and anti-nuclear movements since the sixties have always promoted nonviolent means of countering power and force; the civil rights movement opposing racial segregation in America, environmental movements attacking corporate property as opposed to peoples and apartheid in South Africa, demonstrating that resistance can be expressed in a variety of forms from taking to the streets in nonviolent rallies and demonstrations. Musical and artistic forms of resistance are in abundance from Bob Marley to Nina Simone, to Billy Bragg, all exemplifying nonviolent expression of protest within song. An example of feminist resistance in musical form goes as far back as to the eighteenth century with ‘Rights of Woman’ anonymously written by ‘a lady’ published in the Philadelphia Minerva, 17 October 1795 (McGath, 2013). At the same time, it is questionable the extent to which the civilised and peaceful sermons of Dr Martin Luther King would have been listened to without the threat of more militant and extreme actions of black activists and allies of the movement such as Malcolm X.

Resistance can thus be both on a mass collective scale, but also at an individual level. Rebecca Raby summarises some of the more recent appropriations of the term in her paper ‘What is Resistance?’ (2005), where she assimilates resistance in terms of power and agency at a local level (Raby, 2005: 151). She remarks on the writings of Louis Miron (1996) who speaks specifically of resistance with reference to young people (2005: 151):

resistance ranges from students’ comments that are critical of school practices to the desires of ‘at risk’ and African-American students to challenge stereotypes through academic excellence. Clowning around … not voting … wearing Nazi symbols … and watching Madonna videos … have all been discussed in academic texts as resistance.

By widely connoting the term resistance, it has been a concern that the meaning has been lost entirely. Yet as Raby points out, limiting forms of resistance to collective and violent ones ‘can neglect other potentially subversive activities’. The practice and performance of resistance at a daily level as opposed to the more spectacular large-scale forms of revolution, is a concern of anthropologist James C. Scott. Scott wrote on ‘hidden transcripts’ in his ‘Domination and Arts of Resistance: Hidden Transcripts’ (1990), a general application of his findings from his previous anthropological enquiry ‘Weapons of the Weak: Everyday Forms of Peasant Resistance’ (1985) regarding class relations he observed in a Malay village (Scott, 1990: ix). He noticed there were differing mechanisms of resistance expressed in response to domination articulated at a vernacular level, and the dominant classes seemed to manifest contradictory manners of dealing with those they were subjugating. Scott understood this as power relations affecting the discourse amongst the Malays, repressing their speech and actions when in certain situations (1990: x). It is in the hidden moments or ‘hidden transcripts’ of each social group’s interaction that the underlying dissent can be vocalised; spaces are made where their true expressions can be uttered: ‘Behind the scenes, though, they are likely to create and defend social space in which offstage dissent to the official transcript of power relations may be voiced’ (1990: xi). This is similar to a Foucauldian conception of power and resistance whereby the subjective relation of resistance can be found anywhere: ‘as soon as there is a power relation, there is a possibility of resistance’ (Foucault, 1989: 153).

Hannah Arendt discusses the distinction between individual and collective forms of resistance in response to ‘legal alienation’, ‘a situation where the law does not represent a more or less faithful expression of our will as a community’ (Gargarella, 2003). In her 1970 essay, Arendt defended the rights of American citizens to dissent from unjust laws and policies of the American nation, allowing for a theory describing two recourses to resistance, specifically in relation...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• List of figures and photos
• List of cases and statutes
• Acknowledgements
• Abbreviations
• Introduction
• 1 Resistance to law to resistance
• 2 Social centres
• 3 Property and the a-legal vacuum
• 4 Social centre law
• 5 Reclamation of social space and the theatre of the commons
• 6 Memory, performance and the archive
• 7 Time and succession
• 8 The memory of the commons and the memory of enclosure
• Conclusion: liminal futures
• Appendix: empirical work and list of interview participants
• Bibliography
• Index