Occupy, Constitutional Law And Social Change

In the mid 19th century, Henry Thoreau coined the term ‘civil disobedience’ when fighting against the American government’s state poll tax – the money from which would be used to enforce the Fugitive Slave Law.  He broadly used this concept to denote individual resistance to civil government in moral opposition to an unjust state.

Since the 1840s, civil disobedience has been nurtured and harnessed through various crucial stages in our evolution as a conscious society, influencing the political thoughts and actions of historical figures and movements which have used the notion of civil disobedience. To name but a few, we had the Boston Tea Party, the suffragette movement, resistance to colonial rule in India courtesy of Gandhi, Martin Luther King Jr’s fight to promote civil rights in the United States and students protesting the war in Vietnam. More recently, other acts of civil disobedience have been used to highlight the need to reassess society’s norms in terms of how we think about and act on environmental issues, equality issues, welfare issues, corporatism, religion, wealth, property and wars in the Middle East.

So what is the role of civil disobedience in promoting social change?  Well, it is about making what could be conceived of as ‘absurd’, normal. No one took the movement for woman’s suffrage seriously in the early 1900s. Society possessed a different value system where woman signified passive, quiet creatures without any say in the man’s world of politics.  However, is working within the law the way to push boundaries?

There is a belief that ‘progressive’ people should always work to promote ‘progressive values’ through the mechanism of the law; working to get one’s message into mainstream media to change the ‘hearts and minds’ of those residing in the public sphere. But how can one deal in and grapple with the law when the law is made by politicians and senior judges who are, in the majority, from privileged and elitist backgrounds, and who reproduce the status quo?

When I attended law school, many years ago, in the misguided hope of becoming a barrister in order to both conceal my roots I was once ashamed of and fight the injustices and inequities in the UK, I was struck by how many of my peers had had a private education, went to Oxford or Cambridge, and generally hadn’t experienced life as I had (a common criticism of the legal profession).  My peers were the future of the legal profession, our future judges and upholders of the Rule of Law, that is to say, ‘a government of laws and not of men’ as John Adams so eloquently put it.

But ‘men’ have been using their powers arbitrarily for quite some time  – the antithesis of the doctrine of the Rule of Law. This is perhaps more noticeable now that the raft of post-2001 terrorist legislation has had tangible effects on our domestic policing law, from the extension of police detention to the banning of legitimate and peaceful protest in the run up to the Queen’s jubilee and the Olympics.

From a lawyer’s perspective, the Rule of Law is a vitally important constitutional theory and I hope Occupy, as a powerful force for social change, can promote its underlying principles to society.  At the same time it is crucial that we re-evaluate our legal system and the sources of our unwritten constitution in this country, such as how our statues are created, by whom and in whose interest; how legislation and common law are interpreted in our courts – and whether these decisions are for the benefit of society at large or mere ephemeral decisions to fit the parochial facts of one particular case.

The ‘for what purpose’ and ‘by whom’ points are paramount if we want to have a system that is ‘just’; these issues have been long debated by constitutional theorists who advocate the separation of powers. The doctrine of the separation of powers was first conceived of by Aristotle and has been gradually explained and perpetuated by the French jurist Montesquieu. Montesquieu argued that the three functions of government (the legislature, executive and judiciary) should vest in distinct bodies so that excessive power is curtailed through a system of checks and balances by one on the other. Not surprisingly, our courts have ruled that the British constitution features the doctrine (R v SoS for the Home Office v ex parte Fire Brigades Union).  However, similar to the notion that we are ‘free’ beings during this current era of capitalism – in which we are led to believe that we have ‘rights’ and ‘equality’ – I would suggest that the court’s ruling is erroneous.

Parliament holds itself out as being sovereign as it is elected by the voters, but increasingly the courts are treading on parliament’s toes as a result of the need to interpret legislation ‘so far as is possible’ to reflect the European Convention of Human Rights (ECHR). The courts also have the power to make declarations of incompatibility should a piece of legislation not reflect the rights given to UK citizens under the ECHR by virtue of the Human Rights Act 1998. From a different angle, the executive and powerful people, be they companies and/or individuals with vested interests, can hold a great deal of power over the legislators through lobbying campaigns and the more covert ‘wining and dining’ activities that permeate our system of government. You simply have to look at an MP’s past, present and future employment status to figure this out.

Occupy makes a strong stand against such incestuous relationships between politicians, business and power – ‘corporatocracy’.  And yet our legal system is so entrenched in this form of governance – ‘written by them, for them’, as an ideological and repressive state apparatus – that it is increasingly difficult (although not impossible, thanks to the European Union) for social movements to use the law to achieve their objectives.

Take one example which has been a vital issue for Occupy – the privatization of public spaces.  How can public property be owned by a local authority which can then discriminate and exclude those who pay taxes? Take the Ministry of Defence – which owns land which operates as a firing range. The exclusion of the public must be justified; the justification here is public safety and national security. What about less clear cut areas such as the snapping up of public space, from public highways to parks and commons, by private developers who promise luxury shopping malls, apartments and other things we just don’t need?

Easements, prescriptions, rights to roam, human rights arguments and so on exist, but the problem is that corporate entities can use human rights laws as a shield. Take the example of the infamous US Supreme Court case Citizens United.  In this controversial case the right to freedom of speech prohibited the government from restricting political expenditures by corporations and unions who wanted to dish out their wealth to support their political interests.

Despite the growing power of corporate interests in our political system and our law, some still argue that corporations can be controlled; after all, they are legal fictions and the government can intervene.  This may be true.  However, until we have a system of politics which works for the majority of the people rather than a dominant few, with natural laws that are shaped from the bottom up (and not under the guise of ‘democracy’ or ‘equality’), progressive movements will struggle to use the legal system which stands against their core values.  What makes us free is equal access to shared resources, without conventions of society demarcating between different sections of society.

Our legal system is failing us, legal aid is disappearing, litigants in person are increasingly becoming a reality of court life, creating delays whilst also being unable to access the justice they require because of legalese and court-etiquette barriers. Our legal system is inaccessible to most.  Justice is a confused principle which has led people to believe that the legal system is worth something. We try to fight using laws and precedent which have not been decided by the people. There may be times when we need to break the law in the name of morality, to create social change which we can all abide by. Above all, right now, we need to keep focused and remain strong, while changing public perception by making our message and principles known.

By Jen Caulfield